Joslin Murphy v. State Ethics Commission (SPR 20242632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 3, 2024 SPR24/2632 Gerry Tuoti Senior Public Information Officer State Ethics Commission One Ashburton Place, Room 619 Boston, MA 02108 Dear Mr. Tuoti: I have received the petition of Joslin Murphy appealing the response of the State Ethics Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2024, Ms. Murphy requested, “... a copy of Brookline Town Administrator[’s] . . . letter addressed to the Legal Division of the Ethics Commission dated May 17, 2024, along with a copy of the memorandum from the Brookline Office of Town Counsel, enclosed with this letter.” Previous Appeal The request was the subject of a previous appeal. See SPR24/2400 Determination of the Supervisor of Records (September 5, 2024). In my September 5th determination, it was my understanding that the Commission intended to provide a further response to Ms. Murphy, The Commission responded on September 18, 2024. Unsatisfied with the Commission’s response, Ms. Murphy petitioned this office and this appeal, SPR24/2632, 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). 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

Gerry Tuoti SPR24/2632 Page 2 October 3, 2024 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. The Commission’s September 18th Response In its September 18, 2024 response, the Commission claims Exemption (a) of the Public Records Law, and specifically, G. L. c. 268B, § 3(g) to withhold the requested records. Current appeal In her September 18, 2024 appeal, Ms. Murphy opines, ... the Town Administrator is not “subject to” the provisions of the conflict of interest law in this matter. He is not requesting advice for himself individually (he is ineligible for appointment to the relevant positions), nor is he requesting advice as an appointing authority (such authority is held by the Park and Recreation Commission or the Select Board). Instead, he is requesting general advice from the commission relating to future appointments to certain public bodies that do not apply to any particular individual. Under these circumstances, there is no reasonable basis for withholding the request or its attachment from disclosure. Moreover, the request has already been disclosed (see attached), and the Commission has offered no basis for withholding the memorandum that is identified within the request as an attachment. For these reasons, the requested records should be produced. 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).

Gerry Tuoti SPR24/2632 Page 3 October 3, 2024 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 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 Commission cites G. L. c. 268B, § 3(g), which states in pertinent part as follows: The Commission shall upon written request from a person who is or may be subject to the provisions of this chapter or chapter two hundred and sixty-eight A, render advisory opinions on the requirements of said chapters. An opinion rendered by the commission, until and unless amended or revoked, shall be a defense in a criminal action brought under chapter two hundred and sixty-eight A and shall be binding on the commission in any subsequent proceedings concerning the person who requested the opinion and who acted in good faith, unless material facts were omitted or misstated by the person in the request for an opinion. Such requests shall be confidential; provided, however, that the commission may publish such opinions, but the name of the requesting person and any other identifying information shall not be included in such publication unless the requesting person consents to such inclusion G. L. c. 268B, § 3(g). In it response the Commission asserts, G.L. c. 268B, § 3(g) (emphasis added). “A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Rahim v. District Attorney for the Southern District, 486 Mass. 544, 547 (2020). As the plain meaning of § 3(g) makes clear, a written request for an advisory opinion from a person who is subject to Chapter 268A regarding the requirements of Chapter 268A is confidential. As set forth in your original request and your appeal of August 22, 2024 to the Supervisor of Public Records, you are seeking a written request (a letter and accompanying memorandum) to the Commission from Brookline Town Administrator ... for an opinion on the requirements of Chapter 268A, the conflict of interest law, as applied to individuals who will serve as members of certain Town of Brookline boards and committees.

Gerry Tuoti SPR24/2632 Page 4 October 3, 2024 [An identified individual] who is the Town Administrator for the Town of Brookline, is a municipal employee subject to the conflict of interest law.1 See Edgartown v. State Ethics Comm’n, 391 Mass. 83, 84 (1984) (“General Laws c. 268A regulates the conduct of state, county, and municipal employees relating to the performance of their official duties.”). Further, according to you, [the Town Adminstrator] has sought an opinion from the Commission regarding the requirements of Chapter 268A. The plain language of § 3(g), the exempting statute, does not exclude a requestor’s written request for advice from the confidentiality restriction when the requestor seeks an opinion about how the conflict of interest law applies to other public employees. Instead, all written requests of public employees for advice regarding the conflict of interest law are confidential. This reading is consistent with both the language in the statute and the aim of the Legislature to “encourage agencies and public officials to seek guidance from the Commission.” Lafferty v. Martha’s Vineyard Commission, Civil Action No. 03-3397 (Mass. Superior Ct. 2004) (holding requestor not required to disclose correspondence regarding requests for advisory opinions as they were records subject to confidentiality provision in G.L. c. 268B, § 3(g)). “In the absence of confidentiality, agencies and public officials would be less willing to seek such guidance.” Id. Nothing in the Commission’s regulations, 930 CMR 3.00, contradicts the Commission’s interpretation of §3(g) as exempting written requests for advisory opinions from disclosure. Based upon the Commission’s response, and as the records are restricted from disclosure in its entirety by the Legislature under G. L. c. 268B, § 3(g), as it operates through Exemption (a), I find the Commission has met its burden in responding to this request under the Public Records Law. See G. L. c. 268B, § 3(g) (providing that “such requests shall be confidential”). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Murphy is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Joslin Murphy