Christian Rosado v. State Ethics Commission (SPR 20180708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 29,20 18 SPRl81708 Kevin R. Larivee, Esq. Assistant General Counsel State Ethics Commission One Ashburton Place, Room 6 19 Boston, MA 02108 Dear Attorney Larivee: I have received the petition of Christian Rosado 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, Mr. Rosado requested records related to any complaint, violation, or investigation that the State Ethics Commission has on an identified individual. In a response dated April 27,2018 , the Commission denied access to responsive records under Exemption (a) of the Public Records Law. G. L. c. 4, fj 7(26); G. L. c. 268B. The Commission provided a supplemental response on May 25,2018 . 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, 5 11 (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

Kevin R. Larivee, Esq. Page 2 May 29,2018 The Commission 's responses In its April 27thr esponse to Mr. Rosado the Commission explains "I understand your request to be for records related to complaints and investigations at the Massachusetts Board of Bar Overseers, which oversees ethical complaints against attorneys. However, you sent your letter to the State Ethics Commission, which enforces a different law that deals with financial conflicts of interest among all state, county, and municipal employees in Massachusetts. The State Ethics Commission is not the BBO. It does not handle complaints under the BBO's jurisdiction. It does not keep records on any complaints made to or investigations by the BBO." With respect to "any records of the type you requested that the Commission might have" you assert that "[d]ocuments concerning Commission investigations are not considered public records under G .L. c. 4, 5 7, cl. 26(a)." Exemption (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. Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). This Office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't of Envtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). 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 confidential, 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. . . ." You also note that "Section 7 of G.L. c. 268B further provides, 'any person who violates the confidentiality of a commission inquiry under the provisions of paragraph (a) of section four

Kevin R. Larivee, Esq. Page 3 May 29,20 18 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."' In its May 25thr esponse the Commission indicates "Mr. Rosado is requesting records relating to the preliminary inquiry and initial staff review of the matter (i.e. complaints and investigations). These records, if they even exist, are confidential under G.L. c. 268B, 5 4(a). There was no public adjudication or public education letter" concerning the identified individual. You also assert that "if the Commission were required to disclose investigative materials, if they existed, subject to G.L. c. 268B, 5 4(a), as Mr. Rosado seeks, there would be a serious deleterious effect upon the Commission's ability to investigate possible violations of the conflict of interest law." You further note that "documents concerning requests for Commission advice are not considered public records under G.L. c. 4, 3 7, cl. 26(a). General Laws c. 268B, 5 3(g) specifically provides that '[aln opinion rendered by the commission[ ... ] shall be confidential[.] "' The Commission also cites to 930 C.M.R 3.01(8) which provides in pertinent part: Legal advice given by the Commission's Executive Director, General Counsel, and Legal Division and advisory opinions issued pursuant to M.G.L. c. 268B, 5 3(g), shall be confidential regardless of whether such advice or opinion is written, oral, or electronic. . . . You explain that "State Ethics Commission investigative materials and materials relating to legal advice are not subject to the public record law, nor can we confirm or deny that such materials regarding [the identified individual] even exist." You further indicate that "[blecause Mr. Rosado's request was so broad and complicated, I further construed his request to be for any other record in the State Ethics Commission's possession that is not covered by the confidentiality provisions I've discussed above. The State Ethics Commission has no such records." (emphasis in original). In light of its April 27* and May 25t" responses, I find that the Commission has met its burden to withhold responsive record pursuant to G. L. c. 268B and 930 C.M.R. 3.01(8) as they operate through Exemption (a). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christian Rosado