Michael D'Isola, Esq. v. Office of the Attorney General (SPR 20190180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 11, 2019 SPR19/0180 Lorraine Tarrow, Esq. Assistant Attorney General/Records Access Officer Office of the Attorney General One Ashburton Place Boston, MA 01208 Dear Attorney Tarrow: I have received the petition of Michael D'Isola, Esq. appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 20, 2017, Attorney D'Isola requested the following records: " ... any and all documents relating to the Attorney General's investigation of Metropolitan Property & Casualty Insurance Company ('Metropolitan') concerning Metropolitan's termination of Massachusetts private passenger automobile insurance policies belonging to policyholders who met the state's 'clean-in-three' definttion. This investigation resulted in the Commonwealth of Massachusetts and Metropolitan entering into an Assurance of Discontinuance and the subject matter of ln the Matter of Metropolitan Property & Casualty Insurance Company, Suffolk Superior Court, Civil Action Number 2012-3466." The AGO provided an initial response on November 6, 2017. This response indicated that the AGO's "initial search for records indicates that there are 15 archival boxes containing approximately 22,500 pages of paper records that are potentially responsive to [Attorney D'Isola's] request. [The AGO] ha[s] also found that there are more than 5,000 emails and hundreds of pages of other types of electronic records that may fall within the ambit of your request, although some of these records may be duplicates of paper records." The AGO explained that it is necessary to gather and review the responsive materials in order to determine which records may be subject to disclosure. However, the AGO indicated that it expects to "withhold many of the responsive records in their entireties in accordance with G.L. c. 4, § 7, cl. 26, as they are: (a) specifically or by necessary implication exempted from disclosure by statute (G.L. c. 93A, § 6(6)); and (f) 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

Lorraine Tarrow, Esq. SPR19/0180 Page2 February 11, 2019 investigatory materials. These records consist of materials produced pursuant to G.L. c. 93A, § 6, as well as associated and derivative investigatory materials connected to one or more investigations. In addition, [the AGO] expect[s] that certain personally identifying information in responsive documents otherwise subject to disclosure may need to be redacted in accordance with G.L. c. 4, § 7, cl. 26(c), insofar as that information relates to a specifically named individual, the disclosure of which could constitute an unwarranted invasion of personal privacy . . . ." The AGO further states that it" ... may also determine that records that may be responsive to [Attorney D'Isola's] request will be exempt from disclosure in whole or in large part in accordance with G.L. c. 4, § 7, cl. 26(d), insofar as they are deliberative or policy making materials. [The AGO] note[s] that some of these records may also be or contain privileged attorney-client communications that are likewise protected from disclo,s1.JX.e, or fall within exemptions to the public records law other than those noted above." In light of this initial review, the AGO provided a fee estimate of $7,587.50 based on 307.50 hours to search, segregate, and redact records. The AGO explained that "[t]his estimate accounts for 22.5 hours already expended for staff to identify the likely location of responsive records, identify likely applicable privileges and exemptions, and design a plan to retrieve and review records, and to recall and review a sample of those documents; 225.0 hours for a qualified staff person to retrieve, review, apply privileges and exemptions and sort paper records, and, as necessary, redact or otherwise segregate responsive records; 50.0 hours for staff to perform a similar process for email records; and 10.0 hours for staff to locate, review, select, and, as needed redact, other electronically stored records, all at the rate of $25.00 an hour." The AGO advised Attorney D'Isola to contact it should he wish to modify his request. After receiving the AGO's November 6th response, Attorney D'Isola narrowed his original request for the following categories of records: "1. Any summary reports or statistics that show the towns or zip codes of the cancelled policies. 2. Any summary reports that show how Metropolitan determined which Massachusetts automobile policies to terminate. 3. Any summary documents that references the findings made by the AGO regarding Metropolitan's termination of Massachusetts automobile policies. 4. Any and all emails to or from Metropolitan or its counsel and their attachments. 5. All documents referring to software used by Metropolitan including by not limited to Ingenix, Mitchell Decision Point (a/k/a Mitchell or Decision Point) or Colossus software. 6. All correspondence sent to Metropolitan or its counsel, including letters, notices, pleadings, agreements and drafts thereof." The A GO provided another response on December 7, 201 7, indicating that although Attorney D'Isola has narrowed his request, it" ... will still need to review the same boxes, electronic files, and individual records in responding to [Attorney D'Isola's] modified request

Lorraine Tarrow, Esq. SPR19/0180 Page 3 February 11, 2019 that [it] would have needed to review in responding to [his] original request." As such, the AGO reiterated its original cost estimate and the exemptions referenced in its November 6th response that may apply to the responsive records. Attorney D'Isola issued a payment of $7,587.50, on January 16, 2018. After several correspondences between Attorney D'Isola and the AGO, between March 3, 2018, and December 14, 2018, the AGO provided a response on December 14, 2018, which included portions of the responsive records. The AGO withheld portions of the responsive records pursuant to Exemptions (a), (d), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (d), (f). Unsatisfied with the AGO's response, Attorney D'Isola petitioned this office and this appeal, SPR19/0180, was opened as a result. 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, § 1O (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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The AGO's December Il11 response In its December 14, 2018 response, the AGO indicated that it was enclosing 69 pages of the records responsive to requests 4 and 6 of Attorney D'Isola's request that are subject to disclosure under the Public Records Law. The AGO stated" ... that additional records that may be responsive to [requests 1, 2, 3, and 6] and which constitute a majority of the approximately eight thousand (8000) pages of records [the AGO] reviewed, are not subject to disclosure under G.L c. 4, § 7, cl. 26(a), as they are specifically and by necessary implication exempted from disclosure by statute (G.L. c. 93A, § 6 and G.L. c. 93A, § 6(6))." The AGO asserted that "[t]hese same records, although .sufficiently exempt under G.L. c. 4, § 7, cl. 26(a), are also exempt under G.L. c. 4, § 7, cl. 26(f), as they are investigatory materials that display [the AGO's] confidential investigative methods,

· Lorraine Tarrow, Esq. SPR19/0180 Page 4 February 11, 2019 techniques, and sources of information, the disclosure of which would compromise current and future law enforcement efforts." The AGO further stated that "[o]ne additional record responsive to Part Six (6) of [Attorney D'Isola's] request is exempt from disclosure under [Exemption (d)], as it is a communication that possesses a deliberative character, in that it contains discussions of legal issues and investigatory findings that reveal the AGO's thought processes, and relates to an ongoing deliberative process, in that it extends to 'policy positions being developed' in other current and future enforcement matters." The AGO claimed that it had no records responsive to request 5 of Attorney D'Isola's request and refunded an amount of $2,912.50, as the actual cost for producing the records was less than the good faith cost estimate. The AGO indicated that the actual cost for processing Attorney D'Isola's request, was "$4775.00, which accounts for 195.0 hours of chargeable labor at the rate of $25.00 per hour ($4875.00), less the waived fees of 4.0 hours oflabor at the same rate ($100.00) ...." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). 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. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: The attorney general, whenever he believes a person has engaged in or is

Lorraine Tarrow, Esq. SPR19/0180 Page 5 February 11, 2019 engaging in any method, act or practice declared to be unlawful by this chapter, may conduct an investigation to ascertain whether in fact such person has engaged in or is engaging in such method, act or practice. In conducting such investigation he may (a) take testimony under oath concerning such alleged unlawful method, act or practice; (b) examine or cause to be examined any documentary material of whatever nature relevant to such alleged unlawful method, act or practice; and ( c) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. ... Any documentary material or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court. G. L. c. 93A, § l; 6. Whereas the responsive records consist of the type of information specifically exempted by statute, I find the AGO acted properly in withholding portions of the requested records from disclosure under G. L. c. 93A, § 6, as it operates through Exemption (a) of the Public Records Law. As such, I will not opine on the AGO's Exemptions (d) and (f) claims supporting non disclosure. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney D'Isola is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael D'Isola