Michael Sacco, Esq. v. Worcester Regional Retirement System (SPR 20240074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2024 SPR24/0074 Rachel Grimaldi Executive Director Worcester Regional Retirement System 23 Midstate Drive, Suite 106 Auburn, MA 01501 Dear Ms. Grimaldi: I have received the petition of Michael Sacco, Esq., of The Law Offices of Michael Sacco, P.C., appealing the response of the Worcester Regional Retirement System (Retirement System/WRRS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 28, 2023, Attorney Sacco requested: [1] Any and all documents pertaining to compensation paid to the WRRB Chairman, including but not limited to any Board meeting minutes reflecting any discussion and vote pertaining to the compensation paid to the Chairman, for the period of January 1, 2020, to the present; [2] A copy of [an identified individual’s] executed First Amendment to Employment Agreement, and documents pertaining to any indemnification paid to him pursuant to Section 6 of the Employment Agreement, as amended; [3] Any and all email and text communications exclusively by and between [two identified individuals], whether to [an identified email address] or to him directly at his WRRB email address, for the period of June 1, 2019, to March 9, 2023; [4] Any and all documents pertaining to the purchase of a cell phone, tablet, computer, laptop or any other device for [an identified individual], including Board meeting minutes in which said purchase was discussed and approved; [5] Any and all documents pertaining to reimbursement to [an identified individual] for expenses incurred from January 1, 2020, to the present; [6] Any and all communications by and between two (2) or more Board members, including but not limited to, text and email messages, utilizing both personal and WRRB email addresses and/or cell phones; [7] Any and all communications by and between any Board member and Board staff that reference or discuss [an identified individual] on which [this identified individual] was not copied; 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

Rachel Grimaldi SPR24/0074 Page 2 January 23, 2024 [8] Any and all documents that reference or discuss [an identified individual] on which [this identified individual] was neither copied nor sent directly, including emails and/or text messages sent or received from third parties, excluding documents that bear [this identified individual’s] electronic signature which were sent to members, retirees and/or member unit officials and/or employees; [9] Any and all complaints the WRRB received alleging [an identified individual] was not performing his duties or alleging any wrongdoing on [this identified individual’s] part; [10] Any and all drafts of [an identified individual’s] WRRB contract/ employment agreement; [11] Any and all Board meeting minutes in which [an identified individual] was discussed, including executive session minutes; [12] Board meeting minutes, whether approved or in draft form, or any handwritten notes from the meeting, that authorized the recent public records request sent to Massachusetts retirement boards; [13] Any and all Board meeting minutes which discuss the advertising, hiring and/or recruiting for the CEO position (this request only pertains to the period of June 1, 2019, through December 31, 2019)[.] On August 14, 2023, Attorney Sacco revised his request and stated:  Bullet point three (3) is hereby revised, now seeking, “Any and all email and text communications exclusively by and between [two identified individuals], whether to [an identified individual’s] WRRB-issued cell phone or to him directly at his WRRB email address, for the period of January 1, 2020, to March 9, 2023;”  Bullet point six (6) is hereby revised, now seeking, “Any and all communications by and between two(2) or more Board members, including but not limited to, text and email messages, utilizing both personal and WRRB email addresses and/or cell phones, that reference or discuss [an identified individual] on which [an identified individual] was not copied, for the periods of June 1, 2019 to December 31, 2019, and January 1, 2022 through the date of production;”  Bullet point eleven (11) is hereby revised, now seeking, “Any and all Board meeting minutes in which [an identified individual] was discussed, including executive session minutes, for the period of February 1, 2023 through June 27, 2023. Previous appeals This request was the subject of previous appeals. See SPR23/1890 Determination of the Supervisor of Records (August 28, 2023); SPR23/2034 Determination of the Supervisor of Records (September 12, 2023); SPR23/2667 Determination of the Supervisor of Records (November 15, 2023) and SPR23/2854 Determination of the Supervisor of Records (December

Rachel Grimaldi SPR24/0074 Page 3 January 23, 2024 11, 2023). In the December 11th determination, I closed the appeal as a result of the Retirement System’s December 4, 2023 response. Unsatisfied with the response, Attorney Sacco petitioned this office and this appeal, SPR24/0074, 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. 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. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4).

Rachel Grimaldi SPR24/0074 Page 4 January 23, 2024 The Retirement System’s December 4th response In its December 4, 2023 response, the Retirement System provides further information regarding its fee estimate of $575.00. The Retirement System states: In regards to the rate used for the lowest paid staff person able to complete the task, as the WRRS stated in its October 20, 2023 and November 14, 2023 responses, it identified the lowest paid qualified staff person capable of completing the redactions and/or segregations as the Assistant Board Administrator, whose rate of pay is $59.37 per hour. As previously discussed in its September 26, 2023 communication to the Public Records Division and Mr. Sacco, the staff of the WRRS consists of 10 employees, including the Executive Director, Board Administrator, and Assistant Board Administrator, as well as seven member services representatives. As also previously discussed, the redaction and/or segregation of records is necessarily complex as it involves reviewing, segregating, and redacting attorney-client privileged communications and therefore must be performed by a senior manager or administrator with knowledge of the retirement system, its legal cases, and administration of same. In addition, as discussed below, many of the same attorney-client privileged communications sought by Mr. Sacco contain confidential medical information which as a matter of law must be redacted prior to production. See G.L. c. 4, § 7(26)(a). Having identified the lowest paid staff member capable of completing this task, the WRRS used $25 per hour as the rate charged to complete its request, the highest rate allowed. In his appeal, Mr. Sacco did not identify his basis for challenging this calculation, instead relying solely on a conclusory statement of general disagreement. He has not identified a WRRS employee paid less than the Assistant Board Administrator who is capable of completing his request. There is none. Mr. Sacco is the former Attorney and (at the same time) the former chief executive officer of the WRRS. The responsive documents to revised requests nos. 1-3 include private communications between the WRRS and Mr. Sacco, acting as the WRRS’s attorney, or between the WRRS and subsequent WRRS counsel. Many of those communications concern the seeking or provision of legal advice and are thus protected by the attorney-client privilege. Even if Mr. Sacco is not specifically seeking confidential medical information of retirement system members, the documents Mr. Sacco requests include confidential medical information of retirement system members and discussion of those confidential documents by WRRS Board members. For example, many of the communications between WRRS Board members responsive to request no. 1 specifically concern the confidential medical information of retirement system members and discussions between Board members about what to do with the medical information. See Exhibit 1. For requests nos. 2 and 3, many of the

Rachel Grimaldi SPR24/0074 Page 5 January 23, 2024 documents and communications in which Mr. Sacco is mentioned also contain confidential medical information of retirement system members. Mr. Sacco’s assertion that the documents do not contain confidential medical information is factually inaccurate; the WRRS has reviewed the responsive records and can confirm, as it has in its September 29, 2023, October 20, 2023, and November 14, 2023 responses, and in a phone call on September 29, 2023 between Mr. Sacco and the undersigned counsel, the requested records contain confidential medical information protected from disclosure. Such confidential medical information requires redaction and/or segregation pursuant to Exemption (a) of the Public Records Law, G.L. c. 4, § 726(a) which exempts confidential medical information protected by the Health Insurance Portability and Accountability Act (HIPPA), G.L. c. 111, § 70, G.L. c. 123, § 36, and other statutes. Such information also may require redaction and/or segregation pursuant to the Privacy Exemption of the Public Records Law, G.L. c. 4, § 7(26)(c), which exempts personal medical information from disclosure. It should also be noted that many of the requested communications are both privileged and contain medical information, as Mr. Sacco would regularly communicate as an attorney on legal matters related to members’ applications for disability retirements or related legal actions. In a prior response dated October 20, 2023, the Retirement System states the following: With respect to revised requests 1-3 (as numbered above), the WRRS has reviewed its email and electronic systems, and estimates there are approximately 900 responsive communications (many of which contain accompanying attachments of varying lengths). As previously discussed, the WRRS intends to segregate or redact where required by law attorney-client privileged communications, as well as other information that fall into an exemption under the public records law (for example, confidential medical information of members). As I discussed with you on our September 29, 2023 phone call, this necessary task will take significant staff time in the reviewing, segregating, or redacting exempt records, as each document must be reviewed individually for content to determine whether it may be exempt. Using the same methodology as previously discussed in its August 11, 2023, August 25, 2023, and September 23, 2023 responses, the WRRS estimates the fee to be $575. This number is calculated using a conservative assumption of 3 pages per email (inclusive of attachments), and assuming an aggressive rate of 100 pages per hour. The WRRS uses the rate of $25 dollars per hour as the rate of the lowest paid qualified staff person who can complete this task (the Assistant Board Administrator) rate of pay is $59.37. 2700 pages (900 x 3) at 100 pages per hour represents 27 hours of staff time. While the WRRS has already exceeded 4 hours of staff time to date in responding to your requests, the WRRS will again subtract 4 hours of time from this estimate. 23 hours x $25 per hour= $575.

Rachel Grimaldi SPR24/0074 Page 6 January 23, 2024 Although the Retirement System may assess a fee for redactions under Exemption (a) and the attorney-client privilege, it is unclear whether the time indicated in its estimate includes time that would be spent segregating or redacting records under Exemption (c). Pursuant to the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Retirement System must clarify this matter. I encourage Attorney Sacco and the Retirement System to communicate further in order to facilitate producing records efficiently and affordably. Attorney Sacco may wish to further narrow his request. The Retirement System must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Retirement System is ordered to provide Attorney Sacco with a response to his request, provided 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: Michael Sacco, Esq. Kier Wachterhauser, Esq.