Gar Chung v. Medford Contributory Retirement System (SPR 20230613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 13, 2023 SPR23/0613 Michelle LaJoie Records Access Officer Medford Contributory Retirement System City Hall, Room 215 85 George P. Hassett Drive Medford, MA 02155 Dear Ms. LaJoie: I have received the petition of Gar Chung, of Financial Investment News, appealing the response of the Medford Contributory Retirement System (Retirement System/Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 20, 2023, Mr. Chung requested “…all proposals received from an opportunistic and distressed debt RFP that was issued in May 2022.” On March 22, 2023, the Retirement System denied Mr. Chung’s request in its entirety. As a result, Mr. Chung petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 agency or municipality 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) (written response must “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…”); 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 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

Michelle LaJoie SPR23/0613 Page 2 April 13, 2023 burden of establishing the applicability of an exemption). 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. The Retirement System’s March 22nd Response In its March 22, 2023 response, the Retirement System denied Mr. Chung’s request in its entirety. The Retirement System asserted, “[w]ith respect to the documents that you seek, you have stated that the purpose of your request for all proposals received from an opportunistic and distressed debt RFP that was issued in May 2022 is to seek information in the proposals submitted.” Further, the Retirement System asserted, [i]n light of the purpose you have provided, the Board believes the request’s purpose is solely commercial and thus, given the provisions of 950 C.M.R. 32.08(2)(b), the Board has determined that it has no obligation to produce the documents sought and thus, your request is denied.” In an April 3, 2023 email to this office and Mr. Chung after this appeal was opened, the Retirement System reiterated its position from the March 22nd response that the request is for a commercial purpose. The April 3rd email indicated, “[i]t appears that Financial Investment News, fin ǀ searches, fin ǀ datalink and Emerging Manager Monthly are solely subscription-based services.” Based on the Retirement System’s response, it is unclear if it possesses records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Also, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). If the Retirement System is withholding records, it must identify the record(s) it has in its possession that are responsive to Mr. Chung’s request and explain with specificity, the exemption that applies to withhold the records from disclosure. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Further, the Retirement System must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Therefore, based on the Retirement System’s March 22nd and April 3rd responses, I find the Retirement System did not meet its burden in responding to Mr. Chung’s request.

Michelle LaJoie SPR23/0613 Page 3 April 13, 2023 Conclusion Accordingly, the Retirement System is ordered to provide Mr. Chung with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Gar Chung