Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20192448)

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

Rebecca S, Murray Supervisor of Records

December 23, 2019 SPR19/2448

Valerie J. Connolly

Records Access Officer

Office of the Secretary of the Commonwealth One Ashburton Place, Room 1710

Boston, MA 02108

Dear Ms. Connolly:

I have received the petition of Colman Herman appealing the response of the Office of the Secretary of the Commonwealth — Administrative Services Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested the following records:

[H]ard copies and electronic copies of any and all communications related to the state ethics commission’s investigation of Secretary William Galvin regarding [] allegations that he violated the conflict of interest law by “benefitt[ing] politically from early voting signs that prominently featured his name and an Information for Voters booklet that provided him with free positive publicity, which were created and distributed by his office.”

Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes. Please be aware that [i]f any related communications were done through personal email accounts, text messaging, etc., these vehicles must be searched for responsive public records.

The Division responded on December 9, 2019 by denying access to responsive records. under G. L. c. 268B, § 4(a) as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a).

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, § 1OA(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical

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

Valerie J. Connolly . SPR19/2448 Page 2 December 23, 2019

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, § 10(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.

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 Division cited G. L. c. 268B, § 4(a) which provides in relevant part:

All commission proceedings and records relating to a preliminary inquiry or

initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the general counsel may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding.

Valerie J. Connolly ~ SPR19/2448 Page 3 December 23, 2019

In its December 9" response the Division indicates “t]he responsive records in this office’s possession are communications between the State Ethics Commission ([Ethics] Commission) and this office related to a preliminary inquiry. This office is withholding these records under G. L. c. 268B, § 4(a) as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a).” The Division also asserts “[fJurther, a Superior Court has found that based on the [Ethics] Commission’s statute requiring confidentiality of these records, an entity may withhold their communications with the [Ethics] Commission concerning preliminary inquiries by necessary implication under Exemption (a). See Lafferty v. Martha’s Vineyard Comm’n, 17 Mass. L. Rptr. 501; 2004 WL 792712, at *7 (Apr. 9, 2004).”

In his appeal petition Mr. Herman objects to this response and asserts, in part, “[t]he responsive records in the files of the ethics commission may be confidential, but those same records in files of the office are not confidential. [] Moreover, the investigation is no longer preliminary (see forthcoming email).”

The Lafferty decision referenced by the Division found that G. L. c. 268B, § 4(a) is part of a statutory and regulatory scheme that sets up a framework of confidentiality for correspondence with the Ethics Commission. See Lafferty, 2004 WL 792712, at *6. The Lafferty decision also provides in pertinent part: .

Accordingly, this court concludes that, pursuant to exemption (a), MVC

[Martha’s Vineyard Commission] is not required to disclose communications with - the Ethics Commission in so far as the correspondence concerns advisory

opinions, requests for advisory opinions, and preliminary inquires or initial staff reviews.

Id, at *7.

As described above, the Division explained that the responsive records are communications with the Ethics Commission related to a preliminary inquiry. In light of G, L. c. 268B, § 4(a) and the holding in Lafferty that the confidentiality provisions of this statute apply to records beyond just those in the Ethics Commission’s possession, I find the Division has met its burden to withhold the responsive records under G. L. c. 268B, § 4(a) as it operates through Exemption (a).

Sincerely,

Rilteca Manan

Rebecca S. Murray Supervisor of Records

cc: Colman Herman