Michael M. Short v. State Ethics Commission (SPR 20180167)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 2 1,201 8 SPR181167 Pauline Nguyen, Esq. Acting General Counsel State Ethics Commission One Ashburton Place, Room 6 19 Boston, MA 02108-0510 Dear Attorney Nguyen: I have received the petition of Michael Short appealing the response of the State Ethics Commission (Commission) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 17,2018, Mr. Short requested time to review the following records: "1) Any and all investigatory reports prepared by or on behalf of the Commission and/or Wayland High School concerning the allegedlactual ethics violations under the Massachusetts Conflict of Interest Law. 2) All correspondence to and from the Town of Wayland, Wayland public Schools, Wayland High School, and/or any individual associated with and/or representing the same. 3) All documents memorializing the 'financial penalty' imposed on [an identified individual] by Wayland High School. 4) All correspondence to and from [an identified individual] and/or his attorney concerning this matter. 5) The Public Education Letter issued as a result of this matter. 6) Any correspondence to [the identified individual] from the Commission." The Commission provided a response on February 1,201 8 in which it provided a link to access responsive records for Request Number 5. However, the Commission denied access to records responsive to Requests Numbered 1 through 4 and 6 pursuant to G. L. c. 268B, 5 4(a), as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, 5 7(26)(a). Subsequent to the opening of this appeal, the Commission provided a supplemental response on February 14, 2018. Unsatisfied with the Commission's response, Mr. Short petitioned this office and this appeal, SPR181167, was opened as a result. One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Pauline Nguyen, Esq. Page 2 February 2 1,201 8 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, 5 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission' s February 1 and 14 t'zr esponses In its February lSta nd responses, the Commission cited G. L. c. 268B, 5 4(a) and indicated that documents concerning Commission investigations are exempt. The Commission indicated that section 7 of G. L. c. 268B provides that failure to comply with the confidentiality requirement would result in a penalty including a fine of not more than a $1 000 or imprisonment of not more than one year, or both. The Commission referenced multiple decisions by this office which has read G. L. c. 268B, 5 4 to exempt from disclosure all proceedings and records in a Commission preliminary inquiry or initial staff review. The Commission indicated that after voting to find reasonable cause to believe the subject violated G. L. c. 268A, the Commission chose to resolve the matter through a public education letter rather than initiate an adjudicatory proceeding against the identified individual. "Consequently, there was no public hearing concerning the matter and no investigative records disclosed in connection with a public hearing. For that reason, the requirement of confidentiality imposed on the Commission investigative materials . . . remains applicable to the Commission's investigative records." The Commission referenced a Supervisor of Records decision, SPR961443, which found that ". . . even after a matter became public and a public adjudicatory proceeding was held, the confidentiality requirement of G. L. c. 268B, 5 4(a) continued to apply to records gathered during the initial staff review and the preliminary inquiry stages that were not disclosed during the public hearing." The Commission concluded that if required to disclose investigative materials subject to G. L. c. 268B, 5 4(a), "there would be deleterious effect upon the Commission's ability to investigate possible violations of the conflict of interest law."

Pauline Nguyen, Esq. Page 3 February 2 1,201 8 Exemption (a) The Commission denied access to responsive records pursuant to G. L. c. 268B, 5 4(a), as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, 5 7(26)(a). Exemption (a), the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (19 79); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Commission has cited G. L. c. 268B, 5 4(a) as applicable to withhold the records pursuant to Exemption (a). G. L. c. 268B, 5 4(a) in pertinent part reads: . . . All commission proceedings and records relating to a preliminary inquiry or initial staff review to determine whether to initiate an inquiry shall be conjdential, except that the general counsel may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. . . ." (emphasis added). Any person who violates the confidentiality of a commission inquiry under the provisions of paragraph (a) of section four of this chapter shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both.

Pauline Nguyen, Esq. Page 4 February 2 1,201 8 G. L. c. 268B, 5 7. The Commission's February 20"' supplemental response Subsequent to the opening of this appeal, on February 20,201 8, the Commission provided a supplemental response providing further explanation regarding the stages of the review process of its proceedings. The Commission indicated that once a complaint is received or generated, the Enforcement Division (Division) conducts an initial review and informal investigation into allegations of violations of the Conflict of Interest and/or Financial Disclosure Laws. At the end of the initial staff review process, the Division either closes the complaint if no evidence of a violation is found, sends the subject of the complaint a confidential educational letter if it appears a relatively minor violation may have been committed, or recommends to the Commission to authorize a preliminary inquiry (formal investigation). The Commission indicated that a preliminary inquiry is recommended if there are sufficient facts to support the allegations. The Commission indicated that the purpose of this process is "to obtain sufficient evidence to determine whether there is reasonable cause to believe a violation of G. L. c. 268A and/or c. 268B has occurred. Investigative summonses for documents and for testimony may be authorized by the Commission in the course of any preliminary inquiry." The Commission indicated that at the conclusion of the preliminary inquiry stage, it proceeds to the Reasonable cause finding stagelpublic resolution. The Commission explained that this is where it determines if there is a reasonable cause to believe that a violation of G. L. c. 268A and/or c. 268B has occurred or not. If no reasonable cause is found, the matter is either closed or resolved confidentially. However, if reasonable cause is found, the Commission either votes to resolve the matter "1) through the issuance of a public education letter, 2) through a public disposition agreement entered into with the subject, or 3) by authorizing an adjudicatory proceeding pursuant to 930 CMR 1.01. These resolutions are public resolutions." The Commission reiterated that all proceedings and records relating to the initiation of the conduct of any preliminary inquiry or initial staff review must be kept confidential. As such, "where [it] has voted to find reasonable cause, and in lieu of initiating adjudicatory proceedings, the Commission votes to resolve a matter through a public education letter, all records obtained during [these stages] remain confidential pursuant to G. L. c. 268B, 5 4." The Commission indicated that this is unlike an adjudicatory proceeding where documents used during a public hearing become a public record. As a result, the public education letter is the only record that is made public. Based on the Commission's responses, I find that the Commission has met its burden in establishing that the requested records, with the exception of the public education letter, are documents gathered during the initial staff review and preliminary inquiry stages which are statutorily exempt from public disclosure.

Pauline Nguyen, Esq. Page 5 February 2 1,201 8 Conclusion Accordingly, whereas the responsive records consist of information related to the type specifically exempt by the above statute, I find the Commission has met its burden in properly withholding the responsive records pursuant to G. L. c. 268B, 5 4(a), as it operates through Exemption (a). This administrative appeal is now closed. If Mr. Short is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, tj 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Short