Todd Feathers v. Office of the Comptroller (SPR 20171765)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 12, 2018 SPR17/1765 Katie Kendall Director of Special Operations Office of the State Comptroller One Ashburton Place, 9th Floor Boston, MA 02108 Dear Ms. Kendall: I have received the petition of Todd Feathers of the Lowell Sun appealing the response of the Office of the Comptroller (Office) to a request for public records. G. L c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Feathers requested"[ c ]opies of all presentment letters and settlement memorandums submitted to the Comptroller pursuant to 815 CMR 5.03 since Jan. 1, 2015." The Office initially responded on December 19, 2017 and Mr. Feathers appealed that response. 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, § 1 OA( 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, § 1 O(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 \Vhy the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In its December 19th response, the Office asserts "[t]he SJC has determined that the 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

Katie Kendall SPRl 7/1765 Page 2 January 12, 2018 Comptroller's Office is not required to produce documents forwarded to it by other government entities related to settlements and judgments, but is required to produce payments amounts which were described in the case at the object code level. Globe Newspaper Co., Inc. v. Executive Office ofA dministration and Finance, et. al., Suffolk Superior Court Civil Action No. 11-01184- A." However, the Office provided "a report of torts paid under c. 258 by department, year and amount in accordance with the SJC guidance" and noted that Mr. Feathers "may contact each Department who is responsible for maintaining the record copy of the case file and responding to public records requests for case details." In his appeal petition Mr. Feathers indicates "[t]he agency provided me with a list of settlement payments including a three-letter code for the agency that made the payment, the year of the payment, and the amount. That document does not satisfy my request." He also cites 815 CMR 5.03 and notes "[t]he regulation states that within 160 days of the original presentment executive branch agencies must submit certain documents to the Comptroller, including 'a copy of the presentment letter; a settlement memorandum describing the terms of the settlement. .. '" Mr. Feathers asks this office "to instruct the Office of the Comptroller to produce the requested records in a timely fashion." Subsequent to the opening of this appeal, you provided Mr. Feathers a link to the Office's policy regarding settlements and judgments and referred to a specific footnote in the Globe decision. Mr. Feathers responded by also referring to the Globe decision and noting "Mr. Wallack did not request that the Office of the Comptroller provide him with the actual settlement documents forwarded to it by other agencies, so obviously the office would not need to provide those." He asks this office to continue to process his appeal. Applicability oft he Globe decision The portion of the Globe decision the Office cites provides the following: To be clear, OSC is not required to produce copies of any agreements forwarded to it by other government entities. On the facts of this case, OSC's obligations extend to producing the spreadsheet of the requested settlement payments with the names of the individuals included and, like the other defendants, to producing copies of the agreements to which OSC itself is a party, subject to redaction. Further, neither OSC nor any agency subject to this ruling will be required to provide the name of any funds recipient the identity of whom is barred from disclosure by state or federal law. Id. at 3 6 n. 11. It is also important to note that the Globe decision states governmental entities are not permitted "under the principles of governing law to redact ... the names of public employees who receive public funds in settlements of claims, or other information on the basis simply that it might facilitate identification of those individuals." See id. at 34-35. In addition, the footnote

Katie Kendall SPRl 7/1765 Page3 January 12, 2018 referenced above indicates the Office must provide records with "names of the individuals included." In the Globe decision, the Office's obligation to produce a spreadsheet of the requested settlement payments, instead of copies of any agreements forwarded to it by other government entities, was based on "the facts of this case." It is unclear how the records sought by Mr. Feathers are sufficiently similar to those sought in the Globe case. As a result, it is unclear how the Globe case allows the Office to deny access to records responsive to Mr. Feathers' request. Further, under the Public Records Law, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § IO(a)(ii). It is unclear whether the Office possesses these responsive records. I understand that in a conversation with a Public Records Division staff attorney, Deputy Comptroller and General Counsel Jenny Hedderman discussed the applicability of 815 C.M.R. 10 to the retention and accessibility of any potentially responsive records. I find the Office must provide a response to Mr. Feathers that provides additional information regarding whether the Office possesses responsive records. See G. L. c. 66, § IO(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ....) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). Conclusion Accordingly, the Office is ordered to provide a response to Mr. Feathers 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, ~a~ Supervisor of Records cc: Todd Feathers