Michael Sacco, Esq. v. Worcester Regional Retirement System (SPR 20240763)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2024 SPR24/0763 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 SPR24/0763 Page 2 March 22, 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); SPR23/2854 Determination of the Supervisor of Records (December 11,

Rachel Grimaldi SPR24/0763 Page 3 March 22, 2024 2023); and SPR24/0074 Determination of the Supervisor of Records (January 23, 2024). In the January 23rd determination, I found that it was unclear whether the time indicated in its estimate included time that would be spent segregating or redacting records under Exemption (c). WRRS provided a response on February 6, 2024, which included a fee estimate. Unsatisfied with the response, Attorney Sacco petitioned this office and this appeal, SPR24/0763, was opened as a result. Current Appeal In his appeal, Attorney Sacco states, “the only issue that remains in dispute is whether [WRRS] may charge for the time it takes to redact documents by and between the [WRRS] and me, regardless of whether those documents are providing legal advice or otherwise protected from disclosure to third parties due to the attorney-client privilege. The issue here is not whether I am entitled to attorney-client communication – the issue is whether my own emails with my employer are protected from disclosure, and/or may be redacted, when I am a party to the communication… The only charge I should be assessed is the time it took to input the proper search terms to locate documents responsive to the request…” Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Sacco’s status as a party to the communications shall have no bearing on the public nature of the record. Subsequently, I learned that the Retirement System provided a further response on March 20, 2024. Where this appeal was opened as a result of the Retirement System’s February 6th response, I will now consider this administrative appeal closed. Attorney Sacco may appeal the substantive nature of the Retirement System’s March 20th response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Sacco, Esq. Kier Wachterhauser, Esq.