Bahig F. Bishay v. Massachusetts Commission Against Discrimination (SPR 20181349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 21, 2018 SPRlS/1349 Myrna Solod Massachusetts Commission Against Discrimination One Ashburton Pace, Room 601 Boston, MA 02108 Dear Ms. Solod: I have received the petition ofBahig F. Bishay on behalf of Lighthouse Early Learning Center appealing the response of the Massachusetts Commission Against Discrimination (MCAD) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 21, 2018, Mr. Bishay requested " ... copies of all material, information and documents the Complainant delivered to MCAD, or to its Counsels and employees, in connection with the Complainant's Complaint dated May 17, 2016 (the 'Complaint'), at any time before and after May 17, 2016 in connection with the Complaint." Mr. Bishay mentioned that these documents should include: (1) " ... the Complainant's written statement ... detailing alleged facts giving rise to the filing of the complaint ..." (2) " ... financial information and documents relating to the Complainant's income before and after May 17, 2016; tax returns ... " . (?}'' ... tl"l.l~a11g accurate copyof MCADvyritte11 policy" regarding counsel representation. (4) " ... true and accurate copy of every form, or agreement, the Complainant completed, signed and delivered to the MCAD concerning the MCAD's, or its Counsels' representation of the Complainant in the within matter, which could form an 'attorney-client' relationship and all related confidential privileges." (5) " ... true and accurate copy of each statement, information and document the MCAD's General Counsel received and reviewed in connection with his/her authorization of a MCAD Counsel to appear in the within matter pursuant, to 804 CMR 1.09(5)(b) ." MCAD provided a response on September 4, 2018, denying access to responsive records pursuant to Exemption (f) of the Public Records Law and indicating that it did not possess certain records. G. L. c. 4, § 7(26)(±). Unsatisfied with MCAD's response, Mr. Bishay petitioned 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

Myrna Solod SPR18/1349 Page 2 September 21, 2018 this office and this appeal, SPR18/1349, was opened as a result. Purpose of request; identity ofrequestor 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 (1976). Accordingly, Mr. Bishay's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1 )(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Bishay may wish to consider another means of seeking to obtain 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Myrna Solod SPR18/1349 Page 3 September 21, 2018 MCAD's September 4th response In its September 4, 2018 response, MCAD indicates that" ... the records requested are either not available to the public or otherwise the subject of dispute in active litigation in [Lenanetta Johnson v. Lighthouse Early Leaming Center, MCAD Docket No. 14-BEM-01258]." MCAD states that "[a] diligent search has not uncovered documents responsive to requests [3 and 5]." MCAD further states that requests 1, 2, and 4 are documents that are not available to the public, "as the Complaint and Investigative Disposition are the only publicly available case information after a determination of probable cause and before the close of a public hearing." As such, MCAD asserts that, "there are no records available from [MCAD] ... in response to [Mr. Bishay's] request." However, MCAD indicates that because the requested records are part of an active litigation case file, and also because Mr. Bishay is a representative for a party to the litigation, he "may acquire documents by engaging in discovery with opposing counsel ... pursuant to 804 CMR 1.19 and any discovery orders or rulings issued by the Commission in the case." MCAD explains that "[w]hile [it] does provide parties to a charge with greater access to the investigative file, those records are still categorically non-public and may be accessed via discovery when the case is still in active litigation." MCAD further asserts that the records in the investigative case file are exempt from disclosure pursuant to Exemption (f) and "804 CMR 1.04, which states, in relevant part, 'except as otherwise provided in this Regulation, the record in every charge pending before the Commission shall be confidential and exempt from M.G.L. c. 66 and 66A pursuant to G. L. c. 4, § 7(26)(±)."' Exemption (f) 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)(±). 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.

Myrna Solod SPR18/1349 Page 4 September 21, 2018 Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Whereas the public records in question are the subject of a dispute in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b )(1) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation"). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b)(l). Further, MCAD indicates that although its records are not available to the public, parties to the litigation have "greater access to the investigative file via discovery ..." Accordingly, Mr. Bishay may wish to utilize the referenced discovery process to obtain the requested records. This office encourages Mr. Bishay and MCAD to communicate further to enable MCAD to provide the requested records. No duty to create Under the Public Records Law, a custodian of records is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions; or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). As such, whereas MCAD claims "[a] diligent search has not uncovered documents responsive to requests [3 and 5]," I find that Mr. Bishay's appeal relating to these requests has been resolved. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Bahig F. Bishay