Temi Abbass v. Essex Regional Retirement System (SPR 20242854)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2024 SPR24/2854 Charles Kostro Executive Director Essex Regional Retirement System 491 Maple Street, Suite 202 Danvers, MA 01923 Dear Mr. Kostro: I have received the petition of Temi Abbass, of PEI Group, appealing the response of the Essex Regional Retirement System (Retirement System) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 14, 2024, Mr. Abbass requested, “quarterly cash-flow report from Q2 2024, if available, of all your private capital investments, in digital format…. Private capital investments include private equity, real state, natural resources, infrastructure, venture, and private debt funds. Each report would ideally contain these fund attributes: [1] Investment or fund name and vintage year [2] Period or date of investment performance [3] Net capital calls or contributions [4] Net distributions [5] Net asset value or remaining value [6] Net IRR [7] Net multiple or TVPI [8] Asset allocations breakdown [9] Board meeting and investment committee meeting materials for the last quarter (board packets, manager presentations, meeting minutes) The Retirement System responded on October 15 and October 17, 2024. Unsatisfied with the responses, Mr. Abbass petitioned this office and this appeal, SPR24/2854, was opened as a result. Subsequent to the opening of this appeal, the Retirement System sent this office an email on October 21, 2024. 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

Charles Kostro SPR24/2854 Page 2 October 31, 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. 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. Current Appeal In his appeal petition, Mr. Abbass states, “[t]he request is not ‘solely commercial[,]’ and I am not sure how you could deem it so based on the request itself? I would like to appeal this based on the fact the request has research element to it that is not commercial at all.” The Retirement System’s October 15th, October 17th, and October 21st Responses In its October 15, 2024 response, the Retirement System states, “[i]t seems that this request is solely commercial and, given the provisions of 950 CMR 32.08(2)(b), it has been determined that the Board has no obligation to produce the documents sought and thus, your request is denied.” In its October 17, 2024 response, the Retirement System states, “I understood … from the link provided in your email, that your research is made available for clients only. Perhaps I have misunderstood. In any event, with the exception of a couple of legacy funds, the balance of the assets of the retirement system is invested via the state managed Pension Reserves Investment Trust (PRIT) Fund. According to our most recent Annual Statement of Financial Condition, which is available on our … Fiscal Reports page of our website (www.essexregional.com), our total assets as of December 31, 2023 were $697,854,451.02. Of this total, only 0.4% remain in the legacy funds.” While this appeal was pending, the Retirement System sent an email to this office that states, “[w]e received a request in July of 2024 from the same individual at this same company. This request was for twenty-four years of investment documents. Our response in July

Charles Kostro SPR24/2854 Page 3 October 31, 2024 was the same as our response this month and no appeal was filed at that time. . . .” Based on the Retirement System’s responses, it is unclear if it possesses records responsive to the request. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). To the extent that responsive records exist, I find the Retirement System must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Retirement System is ordered to provide Mr. Abbass with a response to his request 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: Temi Abbass