Susan L. Bach v. State Ethics Commission (SPR 20251627)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2025 SPR25/1627 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 Susan L. Bach 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 May 27, 2025, Ms. Bach requested, ... all communications between 2004 to the present date concerning [an identified] Milton SelectBoard . . . Member’s stated “outreach” to the State Ethics Commission, including but not limited to: Any and all communications between the State Ethics Commission and [an identified individual] concerning: [1] Matters before the Milton SelectBoard[;] [2] Matters concerning ethical disclosures regarding MassDOT projects under consideration by the SelectBoard[;] [3] Matters concerning ethical disclosures regarding MBTA Communities Act, including communications with One Commonwealth, CHAPA[.] The Commission responded on May 30, 2025. Unsatisfied with the Commission’s response, Ms. Bach petitioned this office and this appeal, SPR25/1627, 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 SPR25/1617 Page 2 June 24, 2025 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. Current appeal In her June 9, 2025 appeal, Ms. Bach opines, “[an identified individual] MassDOT, spoke extensively about her consultation with the State Ethics Commission regarding ethical conflicts. The Meeting was recorded and posted on the Internet for the world to watch and listen to, which is the regular course of business for the SelectBoard. [An identified individual] clearly and publicly waived any claim of confidentiality. This is a matter of intense and timely public interest.” The Commission’s May 30th Response In its May 30, 2025 response, the Commission cites G. L. c. 268B, § 3(g), as it operates through Exemption (a) of the Public Records Law, to withhold the requested records. 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 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists

Gerry Tuoti SPR25/1617 Page 3 June 24, 2025 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, citing G. L. c. 268B, § 3(g), the Commission states: Materials related to requests for legal advice from the Commission are not considered public records under G.L. c. 4, § 7, cl. 26(a). Due to the requirements for confidentiality imposed on the Commission by statute, I can neither confirm nor deny whether the Commission is in possession of any records concerning requests for legal advice. Therefore, to the extent you are requesting documents related to requests for legal advice, your request for such records is denied. G. L. c. 268B, § 3(g) provides 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). 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. Bach 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).

Gerry Tuoti SPR25/1617 Page 4 June 24, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Susan L. Bach