Irwin Nesoff v. Attorney General's Office (SPR 20180427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 18, 2018 SPR18/427 Lorraine Tarrow, Esq. Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Irwin Nesoff appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Nesoff requested records "pertaining to the merger of Wheelock College and Boston University[,] specifically ... a copy of the MOU signed by the two parties and any other filings that pertain to this merger." Previous appeal This request was the subject of a previous appeal. See SPR18/184 Determination of the Supervisor of Records (February 27, 2018). I closed SPR18/184 with the proviso that the AGO provide Mr. Nesoffwith a supplemental response, provided in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the February 2ih determination, the AGO provided a supplemental response dated March 30, 2018, in which it continues to claim that the responsive records are exempt from disclosure pursuant to Exemptions (d) and (f) of the Public Records Law. Unsatisfied with the AGO's response, Mr. Nesoff petitioned this office and this appeal, SPR18/427, was opened as a result. Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 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

Lorraine Tarrow, Esq. SPR18/427 Page 2 April 18, 2018 (1976). Accordingly, Mr. Nesoff's purpose in making the request has no bearing on the public status of any existing responsive records. 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, § lOA(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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The AGO's March 30th response In its March 30th response, the AGO indicates that under G. L. c. 12, § 8, one of its roles is to "enforce the due application of funds given or appropriated to public charities within the Commonwealth and prevent breaches of trust in the administration thereof." In fulfilling this role, the AGO indicates that its Non-Profit Organization/Public Charities Division (NPCD), "often reviews proposed transactions and other matters for their compliance with Massachusetts Charities Law." This process it indicates, "may take significant time, may involve the AGO receiving draft documents for its consideration, and may also, in some cases, eventually require a court filing in which the AGO would be a party." As such, the AGO claimed Exemptions (d) and (f) apply to withhold responsive records in their entirety. Exemption (d ) The AGO claimed it withheld responsive records pursuant to Exemption (d) of the Public Records Law. Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or

Lorraine Tarrow, Esq. SPR18/427 Page 3 April 18, 2018 may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under its Exemption (d) claim, the AGO indicates that "[w]hile [its] regulatory and enforcement review is ongoing, these matters remain open ..." The AGO also indicates that its "[d]iscussion and analysis ... concerning the provisions within the MOU, the Proposed Merger, or the potentiality of future litigation ... " exempts the records from disclosure. The AGO further asserts that the records fall within Exemption ( d) because "they are intra-agency communications among NPCD staff that reflect internal deliberations and legal thought processes regarding the ongoing AGO review." Exemption (f) The AGO indicated that it withheld responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comrn'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of

Lorraine Tarrow, Esq. SPR18/427 Page4 April 18, 2018 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the AGO indicates that "[t]he MOU received by the AGO pertaining to the Proposed Merger consists of an agreement that is under review/investigation to determine if the provisions therein are in compliance with charities law. Therefore the MOU itself falls squarely within [E]xemption (f) because it is an investigatory material relating to an open matter under review that is necessarily compiled out of public view." The AGO indicates that the information it is provided during the review process "can be of a sensitive nature given that transactions will not yet have closed - and in fact may not end up taking place. As a result, the disclosure of any records prior to the AGO completing any such review ( often at or around the closure of a transaction) would significantly prejudice charities law enforcement efforts by discouraging the charitable sector from providing such information to our office in these types of matters." Additionally, the AGO asserts that "prematurely releasing incomplete, possibly erroneous information would not serve the interests of the charitable sector or state and municipal governments, which rely on this process for a lawful outcome, or the interest of individuals such as [Mr. Nesoff], who may take certain steps based on the information received. [Therefore], it would not be in the collective public interest to disclose these records. "The AGO clarifies that it has not received any other records or filings in conjunction with the Proposed Merger. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1 O(b )(iv) (written response must "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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. Based on the AGO's response, I find that the AGO may permissibly withhold responsive records under Exemptions (d) and (f) of the Public Records Law. With respect to Exemption (d), based on the AGO's response, I find that the AGO has met its burden to withhold the responsive record under Exemption ( d) of the Public Records Law, due to its ongoing regulatory and enforcement review process to ensure compliance with the charities law. Also, as further stated in its response, the AGO as an enforcement agency has the exclusive power to enforce the proper application of charitable funds under G. L. c. 12, § 8. See Dillaway v. Burton, 256 Mass. 568, 573 (stating that the AGO has the exclusive function to correct abuses and the duty to ensure that the public interests are protected in the administration of a public charity). The AGO further states because its investigation/review process of the MOU

Lorraine Tarrow, Esq. SPR18/427 · Page 5 April 18, 2018 between Wheelock College and Boston University is still ongoing, premature release of the records would prejudice charities law enforcement efforts in conducting these proceedings. Consequently, because it appears that the premature disclosure of the responsive record would not be in the public interest as it could lead to the release of possibly erroneous information if the transaction, which has not yet closed, does not occur, I find that the AGO has met its burden to withhold the record under Exemption (f) of the Public Records Law. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, whereas I find that the AGO acted properly in withholding responsive records under Exemptions (d) and (f) of the Public Records Law at this time, I will consider this administrative appeal closed. If Mr. Nesoff 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, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murr~ Supervisor of Records cc: Irwin Nesoff