Rosemary Shaughnessy v. Public Employee Retirement Administration Commission (SPR 20181596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2018 SPRlS/1596 John Parsons, Esq. General Counsel Public Employee Retirement Administration Commission 5 Middlesex Avenue, Suite 304 Somerville, MA 02145 Dear Attorney Parsons: I have received a request for reconsideration from Michael Sacco, Esq. on behalf of the Worcester Regional Retirement Board (Board) regarding a determination related to a response of the Public Employee Retirement Administration Commission (PERAC) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 11, 2018 Rosemary Shaughnessy requested "copies of any correspondence, written, printed or electronic including, but not limited to emails, letters, notes, memoranda relative to 1. Conduct of a field audit of the Worcester Regional Retirement Board and 2. Each of the auditors assigned thereto. The scope of the search can be limited to the time period August 1, 2016 through the present date." This request was the subject of a previous determination. See SPRl 8/1596 Determination of the Supervisor of Records (November 14, 2018). In my November 14th determination I closed the appeal in light of PERAC 's November 7, 2018 response that provided additional information regarding its exemption claims. In a letter received by this office on November 27, 2018, Attorney Sacco seeks reconsideration of this determination. 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 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

John Parsons, Esq. SPR18/1596 Page2 December 18, 2018 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. Request for reconsideration In an October 25, 2018 response PERAC asserted "[p]ursuant to MGL Chapter 4, Section 7, cl. 26 (b), (d) and (f), the records you have requested are exempt from public disclosure. The records that you request are relative to an ongoing audit and therefore are exempt from release." Subsequent to the opening of the appeal, PERAC provided a supplemental response dated ih November that provides additional information regarding its exemption claims. In this response PERAC asserts "[r]ecords related to ongoing audits must be protected from disclosure in order to protect the integrity of the audit. To allow the public, and in this case the actual entity being audited, to have access to the communications and actions of the audit agency, particularly during the audit process, would completely undermine the ability of an audit agency to properly conduct its statutory duty." You also note that " [a ]n audit is essentially akin to an investigation, as contemplated in exemption (f) at G.L. C. 4, s.7, cl. 26. Exemption (f) serves to protect the integrity of an investigative agency to perform its statutory function." Exemption (b) The Department claimed it withheld responsive records pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure.

John Parsons, Esq. SPR18/1596 Page 3 December 18, 2018 Exemption (d ) The Department indicated that 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 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). 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)(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 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

John Parsons, Esq. SPR18/1596 Page 4 December 18, 2018 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. In the request for reconsideration Attorney Sacco indicates that "[r]espectfully, the Board disagrees that a PERAC field audit falls within the investigation exemption, which the Legislature clearly intended to protect the integrity of a criminal investigation so as not to 'tip off' the investigation's target such that critical evidence to that investigation could be compromised or destroyed." Attorney Sacco references certain case law and asserts "[b] ased on the foregoing, as a matter of law it seems an impermissible stretch to correlate a PERAC field audit to being 'akin' to a police investigation that permits PERAC to invoke the investigatory exemption in not producing the records the Board seeks." Attorney Sacco also objects to the withholding ofrecords in their entirety, in particular, he notes "[m]oreover, even if this exemption applied, there is no blanket exemption applied such that each and every document the Board seeks - for example, an internal email exchange by and between PERAC employees as to the identity of the PERAC auditors to be assigned to the audit, and any internal discussion as to who should be assigned -would clearly not be covered by the investigatory exemption." He also notes that" ... the Board believes that even if the investigatory exemption applies -which is doubtful -there clearly are records in PERAC's position and control that would not fall within the exemption and should have been identified and produced. It is also worth noting that PERAC has already produced its draft audit to the Board, and thus any 'investigation' has concluded as its findings have been submitted to the Board, which means that any investigatory exemption that potentially applied no longer applies." Attorney Sacco indicates that the Board requests that " ... you (1) reconsider your November 14, 2018 ruling ... "and order PERAC to identify and produce responsive documents, or produce responsive records for an in camera review, and " ... order that PERAC produce any documents that are responsive to the Board's October 11, 2018 request that you have determined do not undermine the audit's purpose." I find that PERAC must clarify which responsive records it possesses. See G. L. c. 66, § lO(b)(iv) (a written response shall "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. ...) ; Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). I also find that PERAC has not met its burden to demonstrate how responsive records may be withheld in their entirety under the Exemptions (b), (d), or (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). Conclusion Accordingly, PERAC is ordered to provide Attorney Sacco with a response prepared in a manner consistent with this order, the Public Records Law, and its Regulations within 10

John Parsons, Esq. SPR18/1596 Page 5 December 18, 2018 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rosemary Shaughnessy Michael Sacco, Esq.