Sarah Matthews v. Attorney General's Office (SPR 20240695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2024 SPR24/0695 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Sarah Matthews, Esq., of ProPublica, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 18, 2023, Attorney Matthews requested: [1.] ... all records your agency possesses that pertain to its April 5, 2019 Assurance of Discontinuance (Docket number: 19-1079E) against Exeter Finance LLC. These records include, but are not limited to: all legal filings, exhibits, investigatory records, internal agency communications, responses from Exeter Finance representatives, and ... [2.] A review of “Exeter’s business practices in Massachusetts” ... [3.] The “Relief List” provided to Exeter by Massachusetts’ AGO ... [4,] The “CID production dated March 29, 2019’”... [5.] The “Final Borrower List”... [6.] A copy of the “letter drafted by the AGO to each borrower on the Final Borrower List”... Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0282 Determination of the Supervisor of Records (February 12, 2024). In my February 12th determination, I learned that the AGO intended on providing a further response to Attorney Matthews. The AGO responded on February 27, 2024. Unsatisfied with the response, Attorney Matthews petitioned this office and this appeal, SPR24/0695, 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

Hanne Rush, Esq. SPR24/0695 Page 2 April 1, 2024 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). 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 AGO’s February 27th Response In its February 27, 2024 response, the AGO cited Exemptions (a), (d) and (f) of the Public Records Law to withhold the requested records in their entirety. 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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.” 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

Hanne Rush, Esq. SPR24/0695 Page 3 April 1, 2024 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. In its response, the AGO cited, G. L. c. 93A § 6 indicating that the records are exempt from disclosure. G. L. c. 93A, § 6 provides in pertinent part as follows: Any documentary material or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court. G. L. c. 93A, § 6. In its response, the AGO asserts, “[t]he AGO stands by its position that it properly withheld certain records responsive to the request (responses from Exeter Finance representatives,’ ‘[a] review of ‘Exeter’s business practices in Massachusetts,’ ‘[t]he ‘CID production dated March 29, 2019,’ and ‘[t]he ‘Final Borrower List’) within the requested case file in accordance with M.G.L. c. 4, § 7, cl. 26(a) as they constitute records specifically exempted from disclosure by statute, M.G.L. c. 93A § 6, which prohibits the disclosure of records produced in response to a civil investigative demand. We note that this mandatorily exempts records, including any derivative materials created by the AGO, from public disclosure for which redaction would render them entirely meaningless.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonable complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, §

Hanne Rush, Esq. SPR24/0695 Page 4 April 1, 2024 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the AGO asserted that [the] records are being withheld from disclosure in their entirety in accordance (d) intra-agency communications between and among Assistant Attorneys General and other AGO staff exchanged during the initial investigation that resulted in the AoD as well as the current investigation, which reflect an ongoing deliberative process, namely the AGO’s position with respect to this and other consumer protection matters, the disclosure of which would taint this ongoing process primarily by inhibiting the candid thinking that results in reasoned and legally defensible courses of action in this and similar matters in the future ... Exemption (f) 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). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in

Hanne Rush, Esq. SPR24/0695 Page 5 April 1, 2024 future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the AGO asserted, to the extent we can determine the scope of the unreasonably broad request for “[a]ll records your agency possesses that pertain to its April 5, 2019 Assurance of Discontinuance (Docket number: 19-1079E) against Exeter Finance LLC …includ[ing] but not limited to…investigatory records, internal agency communications,” such records are exempt from disclosure in accordance with . . . M.G.L. c. 4, § 7, cl. 26(f) as they are investigatory materials related to a matter that remains open and which, if disclosed at this time, would reveal confidential investigative techniques, procedures, and sources of information and which would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). The investigation, as noted explicitly in the Exeter AoD, is a still-ongoing industry-wide investigation into “the financing and securitization of non-prime (or subprime) automobile loans originated in Massachusetts (“Massachusetts Loans”), including default rates, underwriting standards, dealership misrepresentations, and loan servicing conduct.” See AoD, para. 3. Accordingly, revealing any information from the records, including any internal communications, premature to the conclusion of the overall investigation, compliance period and any necessary enforcement action, would compromise effective law enforcement by: 1) revealing the ongoing nature and course of our open investigation and divulge investigatory, legal and other strategies, thereby chilling the cooperation of the target companies, as well as providing these and other target companies with a roadmap to the AGO’s legal and investigative strategies and techniques which would place the AGO at a disadvantage during this large-scale open investigation and for similar investigations currently pending and in the future; 2) dissuading witnesses/private citizens who require assurances of confidentiality so that they will speak openly about matters under investigation without fear of intimidation, retaliation, or invasion of privacy (the “chilling effect”); and 3) affording an opportunity for interference with the investigation being conducted by law enforcement. Based on the AGO’s response, I find that to the extent that the AGO claims that disclosure would reveal the course of its ongoing investigation and chill the cooperation of target companies and witnesses, the AGO has met its burden to withhold the requested records pursuant to Exemption (f) of the Public Records Law. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Therefore, I decline to opine on the applicability of Exemptions (a) and (d).

Hanne Rush, Esq. SPR24/0695 Page 6 April 1, 2024 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Sarah Matthews, Esq.