Joshua Miller v. Department of Revenue (SPR 20180787)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray · Supervisor of Records June 14, 2018 SPR18/787 Roger H. Randall, Esq. Tax Counsel Litigation Bureau Department of Revenue 100 Cambridge Street, J1h floor Boston, MA 02114-2582 Dear Attorney Randall: I have received the petition of Joshua Miller of the Boston Globe appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Miller requested "any and all Department of Revenue daily dashboards by its current name 'Daily Dashboard' or any other name, or any similar aggregations of data that are materially similar." In a response dated June 1, 2018, the Department provide responsive records with portions redacted under Exemptions (a) and (d) of the Public Records Law. G. L. c. 4, § 7(26)(a), (d); G. L. c. 62C, § 21(d). 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, § 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 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

Roger H. Randall, Esq. SPR18/787 Page 2 June 14, 2018 Current appeal In its June 1st response the Department cites G. L. c. 62C, § 21 ( d) and asserts "[o ]n the first page, the lih 15th and 16th lines under the column headings are redacted because they are data for audit or compliance selection criteria and therefore shielded by § 21 (d )." You further note that with respect to G. L. c. 62C, § 21(d), "subsection (d) commits to the Commissioner of Revenue's discretion the decision whether disclosure of such materials 'will seriously impair assessment, collection or enforcement under the tax laws.' Through the undersigned counsel, the Commissioner has made such a determination with regard to certain data contained in the Daily Dashboard." You indicate that in light of the language in G. L. c. 62C, § 21(d), "disclosing to you the information that § 21 ( d) shields would be the same as disclosing to you a tax return for a Massachusetts taxpayer. The Commonwealth cannot disclose such information." The Department also notes that the column headings at the bottom of the first page were redacted under Exemption ( d) "because they are a short description of policy-priorities being developed, and therefore shielded by clause 26(d)." You further explain that these column headings "are a temporary prioritization of policies under development, and ongoing communications about prioritization are of course part of developing such policies." In his appeal petition Mr. Miller asserts "I am appealing the redaction of this record. I believe it is an overzealous use of MGL 62C Section 21 (d)." He also notes "I believe the redaction does not properly balance the need to make public records public with the need to protect information that if made public would impair assessment, collection or enforcement under the tax laws." In camera inspection It is my determination that an in camera inspection of the records would facilitate a review as to the applicability of exemption claim made by the Department. See 950 C.M.R. 32.08(4). The Department has indicated it will provide records to this office for an in camera inspection. After I complete my review of the .documents, I will return the records to the Department's custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Roger H. Randall, Esq. SPR18/787 Page 3 June 14, 2018 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. This office will coordinate with the Department to obtain umedacted copies of the records for in camera inspection without delay. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Miller