Todd Wallack v. Massachusetts Commission Against Discrimination (SPR 20171302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 26, 2017 SPR17/1302 Myrna Solod Clerk of the Commission Commission Against Discrimination One Ashburton Place, Room 601 Boston, MA 02108 Dear Ms. Solod: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Commission Against Discrimination (MCAD) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested a "log of open complaints, including the complaint number, the date ofthe complaint, and the nature ofthe complaint." In a response dated September 15, 2017, MCAD provided a partial log of active cases, but withheld "records of complaints that are still under investigation" under Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). MCAD also withheld "personnel or medical files, or any data that may constitute an unwarranted invasion of personal privacy" under Exemption (c). G. L. c. 4, § 7(26)(c). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Myrna Solod SPR17/1302 Page2 September 26, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal · In its September 15th response MCAD claims G.L. c. 151B, §5 and 804 C.M.R. 1.04 require withholding of responsive records as they operate through Exemption (a). MCAD also cites Exemption (f) which you state "exempts investigatory materials from disclosure." In his appeal petition Mr. Wallack indicates "I have no objections if the agency withholds any fields that could potentially jeopardize an ongoing the investigation (such as the name of the party who brought the case), but I ask that the agency release at least some details on each active case, such as the date that the complaint was filed and the category of the complaint. ... "Mr. Wallack also references a statement made in court by an MCAD attorney regarding the public status of certain information about active complaints. Although MCAD cites G.L. c. 151B, §5 and 804 C.M.R. 1.04, it is unclear how these provisions apply to withhold the information Mr. Wallack seeks. Further, MCAD has not met its burden to show how disclosure of this information "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). See Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted you and I was informed MCAD would provide a supplemental response to Mr. Wallack. Conclusion Accordingly, I will considerthis appeal closed with the proviso that MCAD provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack Deirdre Ann Hosler, Esq.