Walter Wuthmann v. Office of the Treasurer and Receiver General (SPR 20240020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2024 SPR24/0020 Cassandra Mi Chung Records Clerk Legal Department Office of the State Treasurer One Ashburton Place, 12th Floor Boston, MA 02108 Dear Ms. Chung: I have received the petition of Walter Wuthmann, of WBUR, appealing the response of the Office of the State Treasurer (Office) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On November 29, 2023, Mr. Wuthmann requested, “[c]opies of text messages between Treasurer Deborah Goldberg and Cannabis Control Commission Chair Shannon O’Brien going back six months (to June 1).” The Office responded on December 13, 2023. Unsatisfied with the response, Mr. Wuthmann petitioned this office and this appeal, SPR24/0020, 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, § 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. 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

Cassandra Mi Chung SPR24/0020 Page 2 January 18, 2024 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 Office’s December 13th Response In its December 13, 2023 response, the Office cited Exemptions (c) and (f) of the Public Records Law to withhold the requested records in their entirety. The Office stated, If there are records responsive to your specific request, the [Office] decline[s] to produce pursuant to the following exemptions: Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c) 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)[.] It is my understanding that there is pending litigation related to the requested records. See Suffolk Superior Court, O’Brien v. Goldberg, Docket Number 2384CV02183. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. I further decline to opine on the applicability of Exemptions (c) and (f). See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Cassandra Mi Chung SPR24/0020 Page 3 January 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Walter Wuthmann