Matthew Scheffler v. Massachusetts Teachers' Retirement System (SPR 20240485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2024 SPR24/0485 James C. O’Leary, Esq. General Counsel Massachusetts Teachers’ Retirement System Main Office 500 Rutherford Avenue, Suite 210 Charlestown, MA 02129-1628 Dear Attorney O’Leary: I have received the petition of Matthew Scheffler appealing the response of the Massachusetts Teachers’ Retirement System (MTRS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2024, Mr. Scheffler sent MTRS an email stating, I want to set an appointment with an MTRS representative to provide evidence that substantiates MTRS’s belief, “that [an identified person’s] statements at our Annual System Review & Constituent Forum on November 17, 2023 were materially inaccurate, nor in any way false or misleading, much less fraudulent … [p]lease let me know the availability of an MTRS representative, as I would like on record the evidence and documentation that leads MTRS to support [two identified persons’] statements that the quilt chart represents the Private Equities’ realized/cash payment returns on an annualized basis.” Specifically, on February 7, 2024, Mr. Scheffler requested, “…state by name and position who the witnesses are informing your opinions, their qualifications, and the supporting documentation and material that support [the identified person’s] claim that the 20% annualized returns in the quilt chart are realized, cash-on-cash returns.” On February 7, 2024, MTRS informed Mr. Scheffler, “[t]he MTRS is in possession of no public records further responsive to this matter.” In a February 7th email, Mr. Scheffler requested, “…the public record document detailing MTRS’s attendees/witnesses of the MTRS Annual Constituent Forum held on November 17, 2023.” On February 8, 2024, Attorney O’Leary responded to Mr. Scheffler’s February 7th request, stating, “[t]he witnesses to whom I referred are myself and MTRS Executive Director, . . . . My understanding is that as a confirmed attendee at the Constituents’ Forum, you were provided in advance with a list of invitees. The minutes of the meeting identify all actual 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

James C. O’Leary, Esq. SPR24/0485 Page 2 February 28, 2024 attendees, and can be found at https://mtrs.state.ma.us/wp-content/uploads/2023/111723-open- minutes.pdf. On February 7, 2024, Mr. Scheffler sent a further request to Scott Olsen, Director of Communications and Records Access Officer (RAO).The request was received by MTRS on February 8th, specifically Mr. Scheffler requested: I have been informed that MTRS’s opinion of [an identified person’s] statements to be absence of false, misleading or fraudulent statements was arrived at by witnessing the presentation and reading the materials. [I] would like the public document clearly identifying who those staff members are. Also, [I] would like to see any document from MTRS that relates to the Red Alert issued by [the Securities and Exchange Commission] regarding Private Fund Advisors… In a February 8th email, Mr. Scheffler stated, “I would like to expand that request to include any public record, document, report, memoranda, educational material, or communication, received by [Attorney O’Leary] as General Counsel or Executive Director . . . related to risk associated with private funds. I would also like the public document outlining the biographical and financial credentials of [Attorney O’Leary] and . . . that is being used to inform MTRS’s opinion of [an identified person’s] statements.” MTRS provided Mr. Scheffler a February 7th response, stating, “[t]he MTRS is in possession of no public records further responsive to this matter. MTRS provided another response on February 9th, stating, “…[w]e have no documents responsive to your request.” Unsatisfied with MTRS’ responses, Mr. Scheffler petitioned the Supervisor of Records 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); 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.

James C. O’Leary, Esq. SPR24/0485 Page 3 February 28, 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. MTRS’ February 7th and February 9th Responses In both the February 7th response and the February 9th responses, MTRS informed Mr. Scheffler that it has no records responsive to his requests. Subsequent to the opening of this appeal, on February 16, 2024, MTRS provided a supplemental response to the requests made by Mr. Scheffler. In its February 16th response, MTRS states, “this is a supplement to the response previously provided by [Attorney] O’Leary, for which we received your appeal. Please be advised that we have conducted a comprehensive search and have no records responsive to your request.” No Duty to Create Records Mr. Scheffler is advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where MTRS has confirmed that it has no records responsive to the requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Matthew Scheffler