Melinda Rivers v. State Ethics Commission (SPR 20253347)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2025 SPR25/3347 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 Melinda Rivers 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 October 1, 2025, Ms. Rivers requested, “... copies of specific records relied upon in the Commission’s final Disposition Agreement concerning [an identified individual]” including the following: [1] All documents and communications submitted to the Commission by or on behalf of [an identified individual], including: a. Letters, written statements, affidavits, or exhibits; b. Attachments, digital files, PDFs, Word documents, spreadsheets, or image files; c. Physical mail, hand-delivered correspondence, or electronic submissions via email or Commission portal; d. Any additional filings by her attorneys or representatives. [2] All email exchanges (including attachments) between [an identified individual] (and any of her known or possible aliases) and any staff, investigators, or attorneys at the State Ethics Commission from August 2023 to present, including but not limited to messages sent from or to: [identified email addresses] [and] [a]ny personal or alternate accounts used by [an identified individual]. [3] Any internal Commission email chains referencing [an identified individual’s] submissions where those messages include or forward her direct communications or attachments. 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 SPR25/3347 Page 2 November 26, 2025 Previous Appeal The request was the subject of a previous appeal. See SPR24/3041 Determination of the Supervisor of Records (October 21, 2025). In my October 21st determination, I learned that the Commission sent further responses to Ms. Rivers on October 21, 2025 and November 12, 2025. Unsatisfied with the Commission’s responses, Ms. Rivers petitioned this office and this appeal, SPR25/3347, 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). 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 October 21st and November 12th Responses In its October 21, 2025 response, the Commission cited Exemption (a) of the Public Records Law and specifically G. L. c. 268B, § 4(a) to withhold the requested records. In its November 12, 2025 response, the Commission asserted, “[t]here was no adjudicatory (evidentiary) hearing in the Matter of Bridget Baker. If the Commission is provided with a court order or grand jury subpoena, the agency could provide relevant records that were withheld due to confidentiality under G.L. c. 268B, s. 4.” Current appeal In her appeal, Ms. Rivers states, “I respectfully request a determination directing the release—or, at minimum, a detailed custodial index and segregated production—of all responsive records pursuant to 950 CMR § 32.08(5) ... I am not seeking confidential personal information of third parties—only substantive records relied upon in a final state ethics determination.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that

Gerry Tuoti SPR25/3347 Page 3 November 26, 2025 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 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 cited G. L. c. 268B, § 4(a), which states in pertinent part as follows: 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 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. G. L. c. 268B, § 4(a). In its response, the Commission stated, The Commission withheld the requested records under the exemption set forth in G.L. c. 4, § 7(26)(a), which permits the withholding of records that are “specifically or by necessary implication exempted from disclosure by statute.” The exempting statute which specifically prohibits disclosure is G.L. c. 268B,

Gerry Tuoti SPR25/3347 Page 4 November 26, 2025 § 4(a). Section 4(a) provides that any records pertaining to a Commission investigation are strictly confidential ... Here, Ms. Rivers does not seek records from the adjudicatory proceeding of [an identified individual], but instead from the confidential preliminary inquiry. As a result, the “contract and associated evidence” that was allegedly shown to Ms. Rivers by Commission staff during her sworn interview in 2024 as part of the Commission’s investigation of [an identified individual] is exempt from disclosure under G.L. c. 268B, § 4(a), as it operates through Exemption (a). Based upon the Commission’s response, and as the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 268B, § 4(a) 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 “all commission proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential”). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Rivers 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: Melinda Rivers