Michael Bolgatz v. Secretary of the Commonwealth- Securities Division (SPR 20180995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

July 23, 2018 SPR18/995 Patrick M. Costello, Esq. Second Assistant Director for Enforcement Massachusetts Securities Division One Ashburton Place, Room 1701 Boston, MA 02108

Dear Attorney Costello:

I have received the petition of Michael Bolgatz, Esq. appealing the response of the Securities Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Bolgatz requested records referenced in an identified Consent Order. See SPR18/597 Determination of the Supervisor of Records (May 11, 2018); SPR18/940 Determination of the Supervisor of Records (July 9, 2018).

The Division initially responded on February 27, 2018. I understand that following certain correspondence and discussion, the Division provided a link to view records that are publically available. The Division also provided a written response on June 8, 2018 that cited Exemption (f) of the Public Records Law, as well as G. L. c. 110A and 950 C.MLR. 14.413, to withhold other responsive records. G. L. c. 4, § 7(26)(a), (f). The Division provided a supplemental response on July 6, 2018 that includes additional information regarding the applicability of Exemption (f) and 950 C.M.R. 14.413 to the responsive records. In an email dated July 8, 2018 Attorney Bolgatz indicated he objects to the Division’s response and SPR18/995 was opened as a result.

In camera inspection

I find that an in camera review of the responsive records would facilitate a determination as to the applicability of the Division’s exemption claims. See 950 C.M.R. 32.08(4); see also Bougas v. Chief of Police of Lexington, 371 Mass 59, 66 (1976) (explaining that “[o]n doubtful questions an in camera inspection may be appropriate”). After I complete my review of the documents, I will return the records to your 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.

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

Patrick M. Costello, Esq. SPR18/995 Page 2 July 23, 2018

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).

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.

Accordingly, the Division must provide this office unredacted copies of the responsive records for in camera inspection within 15 business days. The Division 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.

, Lborep.

Rebecca S. tera." Supervisor of Records cc: Michael G. Bolgatz, Esq.