Matthew Rocheleau v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20200722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 15, 2020 SPR20/0722 William J. Doyle, Esq. Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested: • A copy of the earliest request for records, including but not limited to a subpoena, made by the US Attorney’s office as part of that office’s investigation into overtime irregularities at MSP • A copy of the earliest request for records, including but not limited to a subpoena, made by the Massachusetts Attorney General’s office as part of that office’s investigation into overtime irregularities at MSP. Prior Appeal This request has been the subject of a previous appeal. See SPR20/0479 Determination of the Supervisor of Records (March 20, 2020). In my March 20th determination, I found the Department has not met its burden to withhold responsive records pursuant to Exemption (a), and ordered the Department to provide a response to Mr. Rocheleau consistent with that order, the Public Records Law, and its Regulations. The Department provided a supplemental response to Mr. Rocheleau on April 28, 2020, providing additional explanation regarding its claim to withhold responsive records pursuant to Exemption (a). Unsatisfied with this response, Mr. Rocheleau petitioned this office and this appeal, SPR 20/0722, was opened as a result. 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

William J. Doyle, Esq. SPR20/0722 Page 2 May 15, 2020 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, § 10A(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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In its February 26, 2020 response, the Department asserts that the requested records are exempt from disclosure pursuant to Exemption (a) of the Public Records Law. The Department cites G. L. c. 213, § 3; G. L. c. 234A, § 8; G. L. c. 277, § 5 and Mass. R. Crim. P. 5(d) to support its Exemption (a) claim. 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.”

William J. Doyle, Esq. SPR20/0722 Page 3 May 15, 2020 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. Massachusetts Rule of Criminal Procedure 5(d) provides: The judge may direct that an indictment be kept secret until after arrest. In such an instance, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court. No obligation of secrecy may be imposed upon any person except in accordance with law. Mass. R. Crim. P. 5(d). In its April 28, 2020 response, the Department asserts that “Exemption (a) clearly exempts from disclosure not only records submitted to the Grand Jury, but also necessarily exempts from disclosure records which tend to divulge information about ‘matters occurring before the grand jury.’ By application of Exemption (a) to the public records law, the language of this strong prohibition specifically exempts from disclosure records that were submitted to the Grand Jury in the course of and pursuant to an investigation” The Department further states that “Mass. R. Crim. P. 5(d) precludes disclosure of grand jury information without court order.” The Department then concludes: “[t]he records are exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(a), specifically or by necessary implication as they include any records that describe or were used in the compiling of Grand Jury materials or in the course of and pursuant to a Grand Jury investigation, or that reveal the identities of witnesses.” In camera inspection In order to facilitate a determination as to the applicability of Exemption (a) to the responsive record, I find the Department must provide this office with an un-redacted copy of the responsive record for an in camera review without delay. 950 C.M.R. 32.08(4). 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. 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,

William J. Doyle, Esq. SPR20/0722 Page 4 May 15, 2020 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. Conclusion Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau, the Boston Globe