Larrabee v. Mass. Comm'n Against Discrimination
| Decision Date | 19 November 2019 |
| Docket Number | No. 18-P-464,18-P-464 |
| Citation | 96 Mass.App.Ct. 516,137 N.E.3d 403 |
| Parties | J. Whitfield LARRABEE v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION. |
| Court | Appeals Court of Massachusetts |
J. Whitfield Larrabee, pro se.
Daniel J. Hammond, Assistant Attorney General, for the defendant.
The following submitted briefs for amici curiae:
Susan Forward, for United States Department of Housing and Urban Development.
Kevin J. Berry, for United States Equal Employment Opportunity Commission.
Jonathan M. Albano & Emma Diamond Hall, Boston, for Boston Globe Media Partners, LLC.
Present: Hanlon, Agnes, & Sullivan, JJ.
The plaintiff, J. Whitfield Larrabee, appeals from a judgment entered in the Superior Court affirming the Massachusetts Commission Against Discrimination's (MCAD's or commission's) decision to deny, in part, Larrabee's public records request. See G. L. c. 66, §§ 10, 10A ;1 G. L. c. 4, § 7, Twenty-sixth. On the parties' cross motions for summary judgment, a judge of the Superior Court ruled that the MCAD was not required to continue to provide Larrabee with copies of charges in open cases under investigation or spreadsheets summarizing charge data, based on a newly adopted commission policy. Because the MCAD's recently adopted policy regarding the disclosure of charges in open cases conflicts with its own regulations, we conclude that the commission is obligated to produce the documents requested.2
Background. We summarize the evidence in the light most favorable to Larrabee. See Boston Globe Media Partners, LLC v. Department of Pub. Health, 482 Mass. 427, 431, 124 N.E.3d 127 (2019) ; Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Since 1999, discrimination complaints and case data have been provided by the MCAD in response to public records requests without regard to whether the investigation of those charges was open or closed. Larrabee, an attorney who represents employees and tenants in discrimination matters, has for many years requested from the MCAD copies of MCAD complaints and spreadsheets compiled by the MCAD with charge data derived from its case management database. He uses this information to contact potential clients, identify witnesses, and identify patterns of discrimination. Larrabee also stated that he monitors "the fairness, efficiency, and performance of the agency."
Amicus curiae Boston Globe Media Partners, LLC (Globe), has made information requests to the MCAD and has published articles on the prevalence of complaints at public agencies and trends in discrimination complaints against both public and private employers. Although the requests for data were honored in the past, the MCAD no longer provides the Globe with data compilations regarding cases currently under investigation.
Until December 2006, the MCAD provided Larrabee with copies of complaints and spreadsheets it had generated containing data, including the names and addresses of both complainants and respondents, taken from both open and closed investigations. In 2007, however, the MCAD declined to provide Larrabee with the spreadsheet data. Instead, it gave Larrabee paper copies of complaints in both open and completed investigations. Larrabee filed a complaint in the Superior Court.3 That case was settled in 2009 by agreement of the parties (2009 agreement). The MCAD agreed to provide Larrabee with the usual spreadsheet data "for the most recent three year period." From 2009 through 2014 the MCAD provided Larrabee with the complaints and spreadsheet data pertinent to both open and completed investigations in response to his public records requests.
In 2015, Larrabee filed a public records request, as he had in previous years. The MCAD responded that it had changed its internal policy regarding disclosure of complaints and aggregate data regarding complaints. Going forward, the MCAD would disclose complaints pursuant to a public records request only in closed investigations -- for example, matters that the MCAD had dismissed administratively, found to be unsupported, or certified to public hearing, or those that had been withdrawn to State or Federal court. See G. L. c. 151B, §§ 5, 9 ; 804 Code Mass. Regs. §§ 1.15, 1.20 (1999). The MCAD would no longer provide any information pertaining to open investigations -- that is, those complaints in which an investigation was ongoing. The MCAD also produced a compact disc with data from its case management database regarding closed investigations. Larrabee sent at least two more public records requests to the MCAD in 2015, and one in 2016, but he received the same response.
Also in 2015, the Globe made information requests for pending complaint data, which the MCAD denied. The Globe appealed to the Office of the Secretary of the Commonwealth, which sustained the MCAD's denial of the public records request. The commission relied on this decision in the ensuing litigation.
In 2015, Larrabee filed the underlying complaint in the Superior Court alleging breach of contract and violation of the Massachusetts public records law, and seeking injunctive relief, enforcement of civil and common-law rights, damages, and attorney's fees and costs.
On the parties' cross motions for summary judgment, the judge found that G. L. c. 4, § 7, Twenty-sixth (f ), authorized the MCAD to shield from public disclosure complaints and aggregate data about complaints in open investigations. The judge concluded that although the MCAD's 2015 change of policy was unexplained and contrary to its previous practice, the new policy exempting materials pertaining to open investigations from disclosure served the "public interest."4
Discussion. "We review a grant of summary judgment de novo ... to determine whether ... all material facts have been established and the moving party is entitled to judgment as a matter of law" (quotations and citations omitted). Boston Globe Media Partners, LLC, 482 Mass. at 431, 124 N.E.3d 127. "[W]e review the record in the light most favorable to the party against whom the judge allowed summary judgment, here [Larrabee]." Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 830, 44 N.E.3d 863 (2016), quoting Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 516, 947 N.E.2d 1090 (2011). "Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment." Khalsa, supra, quoting Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6, 887 N.E.2d 244 (2008).
1. Statutory exemption. As to questions of law, in public records cases "the statutory exemptions [from the definition of public records] must be strictly and narrowly construed," Boston Globe Media Partners, LLC, 482 Mass. at 432, 124 N.E.3d 127, quoting Globe Newspaper Co. v. District Attorney for the Middle Dist., 439 Mass. 374, 380, 788 N.E.2d 513 (2003), and "a presumption shall exist that each record sought is public." G. L. c. 66, § 10A (d ) (1) (iv). Although G. L. c. 4, § 7, Twenty-sixth (a ), permits an agency to withhold any records "specifically or by necessary implication exempted from disclosure by statute," there is no provision in G. L. c. 151B, the Massachusetts antidiscrimination statute, regarding the disclosure of complaints or case data.5 The MCAD submits otherwise, claiming that G. L. c. 151B, § 5, which permits an investigating commissioner of the MCAD to hold a conciliation conference after a probable cause finding in any case which the complainant elects to have their case heard at the MCAD (rather than in court) shields all complaints and investigatory documents (in all cases) from public disclosure. The commission raised a similar argument to the supervisor of public records of the Office of the Secretary of the Commonwealth in the Globe matter. The supervisor of public records accepted the commission's rationale and pointed to G. L. c. 151B, § 5, second par., as a statutory exemption to disclosure in its own publication. See Secretary of the Commonwealth, Division of Public Records, A Guide to the Massachusetts Public Records Law 75 (updated Jan. 2017) http://www.sec.state.ma.us/pre/prepdf/guide.pdf. The motion judge rejected this argument, as do we.
The conciliation provision of G. L. c. 151B, § 5, second par., states in pertinent part:
(Emphasis added.)
Section 5 also provides that "the aforesaid endeavors at conciliation shall not be received in evidence" in any subsequent commission hearing.
While the MCAD maintains that the term "endeavor" applies to all "pre-adjudicatory process" before it, including all complaints and investigations, we construe a statute according to its plain meaning. See Worcester v. College Hill Props., LLC, 465 Mass. 134, 139, 987 N.E.2d 1236 (2013). Quite plainly, the term "endeavor" applies solely to "endeavors at conciliation," as the statute explicitly states. See Casseus v. Eastern Bus Co., 478 Mass. 786, 795, 89 N.E.3d 1184 (2018) (...
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