Michael Sacco, Esq. v. Worcester Regional Retirement System (SPR 20251054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2025 SPR25/1054 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. appealing the response of the Worcester Regional Retirement System (System) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 23, 2024, Attorney Sacco requested: [1] any communications with the State Ethics Commission from January 1, 2023 to the present [2] any communications by and between WRRB members and staff from January 1, 2023 to the present regarding the State Ethics Commission [3] any communications by and between WRRB staff members from January 1, 2023 to the present regarding the State Ethics Commission [4] documents that were provided to the State Ethics Commission from January 1, 2023 to the present [5] any interviews by WRRB members or staff with the State Ethics Commission from January 1, 2023 to the present[.] Previous Appeals This request was the subject of previous appeals. See SPR25/0131 Determination of the Supervisor of Records (January 24, 2025) and SPR25/0540 Determination of the Supervisor of Records (March 7, 2025). In my March 7th determination, I learned that the System intended on providing a supplemental response. The System responded on March 21, 2025. Unsatisfied with the System’s response, Attorney Sacco appealed, and this case, SPR25/1054, 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

Rachel Grimaldi SPR25/1054 Page 2 May 1, 2025 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. The System’s March 21st Response In its March 21, 2025 response, the System identified responsive records for Items 1, 2, 3, and 4, and stated that it is withholding the records under Exemptions (a) and (f) of the Public Records Law. The System also states it does not possess responsive records for Item 5. 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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.”

Rachel Grimaldi SPR25/1054 Page 3 May 1, 2025 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. Items 2 and 3 In its March 21st response, the System identified two responsive records for Items 2 and 3 and withheld them in their entirety under Exemptions (a) and (f) of the Public Records Law. The System states: The System conducted a search of electronic communications and on February 25, 2025, attached all nonexempt, non-privileged communications which may be responsive to those requests in its position. For clarity, the system specifically withheld two internal email communication chains between staff and/or board members, dated September 25, 2023 and December 11, 2023, which address the compilation of documents requested by the Stated Ethics Commission as part of an investigation. Items 1 and 4 Also in its March 21st response, the System identified responsive records for Items 1 and 4 and stated it was withholding responsive records in their entirety under Exemptions (a) and (f) of the Public Records Law. Specifically, the System states: With respect to Requests Nos. 1 and 4, you specifically seek communications with the State Ethics Commission and documents provided to the State Ethics Commission. While the WRRS is in possession of such documents responsive to your request, each said document, including each document provided to the State Ethics Commission at their express request and as part of their investigation is exempt under exemption (f) (investigatory records). In addition, the two emails referenced above dated September 25, 2023 and December 25, 2023 are also exempt for the same reason…. the same records are also exempt under (Exemption (a)) as they are expressly confidential by statute. Under Exemption (a), the System cites G. L. c. 268B, § 4(a)-(b), which states in pertinent part as follows: (a) Upon receipt of a sworn complaint signed under the penalties of perjury, or upon receipt of evidence which is deemed sufficient by the commission, the commission shall initiate a preliminary inquiry into any alleged violation of chapter 268A or 268B. At the commencement of a preliminary inquiry into any such alleged violation, the general counsel shall notify the attorney general in order to avoid overlapping civil and criminal investigations. All commission

Rachel Grimaldi SPR25/1054 Page 4 May 1, 2025 proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the general counsel may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. The general counsel shall notify any person who is the subject of the preliminary inquiry of the existence of such inquiry and the general nature of the alleged violation within 30 days of the commencement of the inquiry. (b) If a preliminary inquiry fails to indicate reasonable cause for belief that this chapter or said chapter two hundred and sixty-eight A has been violated, the commission shall immediately terminate the inquiry and so notify, in writing, the complainant, if any, and the person who had been the subject of the inquiry. All commission records and proceedings from any such preliminary inquiry, or from any initial staff review to determine whether to initiate an inquiry, shall be confidential. G. L. c. 268B, § 4(a)-(b). In its response, the System asserts: The public records division has expressly recognized this exemption to the definition of public records. See, e.g. SPR18/167. Nor does the fact that these records are in the System’s possession nullify the statutory exemption. Indeed, if you are not able to obtain this information from the State Ethics Commission – which you cannot because it is confidential as a matter of statute (see SPR18/167) – then there can be no legal basis to be able to obtain said information from a different public entity, the very entity which provided documents to the State Ethics Commission at their request as part of the State Ethics Commission’s investigation into your conduct. If such records were not confidential and exempt from disclosure, then the statutory exemption in G.L. c. 268B, § 4 (a)-(b) would be entirely vitiated. Any person being investigated by the State Ethics Commission would be able to obtain expressly confidential records simply by going to another public body they believe may have the very same confidential records. Based upon the System’s response, and as the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 268B, § 4(a)-(b), as it operates through Exemption (a), I find the System has met its burden in responding to this request under the Public Records Law. See G. L. c. 268B, § 4(a)-(b) (“[a]ll commission proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential…”); see also Lafferty v. Martha’s Vineyard Commission, Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS 107, *7 (holding that the Martha’s Vineyard Commission could withhold records concerning advisory opinions, requests for advisory opinions, and preliminary inquiries or initial staff reviews, based on the Ethics Commission’s statute and

Rachel Grimaldi SPR25/1054 Page 5 May 1, 2025 regulations requiring confidentiality of these records). Consequently, I decline to opine on the applicability of Exemption (f) to withhold the requested records for Items 1, 2, 3, and 4. Item 5 In its March 21st response, the System states it “is not in possession of any ‘interviews’ with the State Ethics Commission. While it is unclear what you refer to when you say ‘interviews,’ to the extent you are seeking a physical or electronic transcript or recording or other documentation of the content of any interviews conducted by the State Ethics Commission, the WRRS is not in possession of any such records. The System is not aware where such public records may exist, if such records exist in the first place, but would recommend contacting the State Ethics Commission to inquire further.” No Duty to Create Records Please note that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). In a telephone call between a staff attorney of the Public Records Division and the System on April 25, 2025, the System confirmed that it searched for and has found no additional responsive records to Attorney Sacco’s request. Conclusion Where the System has met its burden to withhold the responsive records under Exemption (a) of the Public Records Law, I will now consider this administrative appeal closed. If Attorney Sacco 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Rachel Grimaldi SPR25/1054 Page 6 May 1, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michael Sacco, Esq. Kier Wachterhauser, Esq.