Larrabee v. Massachusetts Commission Against Discrimination

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18-P-464 Appeals Court
J. WHITFIELD LARRABEE vs. MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION.
No. 18-P-464.
Suffolk. March 8, 2019. - November 19, 2019.
Present: Hanlon, Agnes, & Sullivan, JJ.
Massachusetts Commission Against Discrimination. Public
Records. Privacy. Statute, Construction. Regulation.
Contract, Construction of contract. Practice, Civil,
Summary judgment, Injunctive relief, Attorney's fees.
Civil action commenced in the Superior Court Department on
September 10, 2015.
The case was heard by Rosemary Connolly, J., on motions for
summary judgment.
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 for Boston Globe
Media Partners, LLC.
2
SULLIVAN, J. 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
1 Statute 2016, c. 121, § 10, effective January 1, 2017,
amended G. L. c. 66, § 10, and added G. L. c. 66, § 10A.
Although the requests in question were made in 2015 and 2016,
the Supreme Judicial Court has expressed a preference for
application of the current version of the statutory provisions
where feasible. See Boston Globe Media Partners, LLC v.
Department of Pub. Health, 482 Mass. 427, 432 n.5 (2019). We do
not discern a difference in the amended statute that would be
material to our analysis in this case, with the exception of the
award of attorney's fees, see infra at . See St. 2016, c.
121, § 18 (specifying that §§ 9 and 10 of act are inapplicable
to public record requests submitted prior to its effective
date).
2 We acknowledge receipt of the amicus brief of Boston Globe
Media Partners, LLC, and the amici letters of the regional
offices of the United States Equal Employment Opportunity
Commission and the United States Department of Housing and Urban
3
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 (2019); Augat,
Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (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
Development, discussing cognate provisions of Federal law.
Because the parties have not briefed or argued Federal law, we
do not address it on appeal. See Mass. R. A. P. 16 (a) (9), as
appearing in 481 Mass. 1629 (2019). Cf. G. L. c. 66, § 10A.
4
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
3 See G. L. c. 66, § 10, as then in effect. See also G. L.
c. 66, § 10A, and note 1, supra.
5
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
6
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. "[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 (2016), quoting Marhefka
v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 516
(2011). "Any doubts as to the existence of a genuine issue of
material fact are to be resolved against the party moving for
4 General Laws c. 4, § 7, Twenty-sixth (f), exempts from
the definition of "public records" certain "investigatory
materials necessarily compiled out of the public view by law
enforcement or other investigatory officials the disclosure of
which materials would probably so prejudice the possibility of
effective law enforcement that such disclosure would not be in
the public interest." The motion judge assumed that the MCAD
was a law enforcement agency and that the materials were
assembled out of the public view. These rulings are contested
on appeal. For the reasons discussed below, we do not find it
necessary to reach them.
7
summary judgment." Khalsa, supra, quoting Milliken & Co. v.
Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (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, quoting
Globe Newspaper Co. v. District Attorney for the Middle Dist.,
439 Mass. 374, 380 (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.
5 General Laws c. 151B is a comprehensive statute that bars
discrimination in housing, employment, education and public
accommodation. The statute also sets forth the general
procedures for filing and investigating complaints, and filing
suit.
8
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:
"If such commissioner shall determine after such
investigation or preliminary hearing that probable cause
exists for crediting the allegations of any complaint and
no complainant or respondent has elected judicial
determination of the matter, he shall immediately endeavor
to eliminate the unlawful practice complained of or the
violation of said clause (e) of said section thirty-two [of
G. L. c. 121B] or said sections ninety-two A, ninety-eight
and ninety-eight A [of G. L. c. 272] by conference,
conciliation and persuasion. The members of the commission
and its staff shall not disclose what has occurred in the
course of such endeavors, provided that the commission may
publish the facts in the case of any complaint which has
been dismissed, and the terms of conciliation when the
complaint has been so disposed of." (Emphasis added.)
Section 5 also provides that "the aforesaid endeavors at
conciliation shall not be received in evidence" in any
subsequent commission hearing.
9
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 (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 (2018) ("When the meaning of any particular
section or clause of a statute is questioned, it is proper, no
doubt, to look into the other parts of the statute: otherwise
the different sections of the same statute might be so construed
as to be repugnant, and the intention of the [L]egislature might
be defeated. . . . Accordingly, [w]e . . . do not read
statutory language in isolation . . . but, instead, examine the
[particular language at issue] in the context of the . . .
statute in its entirety" [quotations omitted]).
Moreover, where possible, we construe statutes together to
effectuate a harmonious whole. See Wing v. Commissioner of
Probation, 473 Mass. 368, 373 (2015); College Hill Props., LLC,
465 Mass. at 139. The construction urged by the commission
conflicts with the public records law's requirement that
custodians "shall" produce a copy of the public record "or any
segregable portion of a public record." G. L. c. 66, § 10 (a).
The conciliation provisions of G. L. c. 151B, § 5, second par.,
10
do not apply to cases that are investigated but are found to
lack probable cause, are removed to State or Federal court, or
are mediated, settled, withdrawn, or dismissed by the parties
outside of the conciliation process. Even under the MCAD's
reading of § 5, which we reject, its construction of the statute
applies only to a subset of cases. A blanket policy covering
all cases cannot be so derived. See Worcester Tel. & Gazette
Corp. v. Chief of Police of Worcester, 436 Mass 378, 384 (2002)
("There must be specific proof elicited that the documents
sought are of a type for which an exemption has been provided"
[citation omitted]); Reinstein v. Police Comm'r of Boston, 378
Mass. 281, 290 (1979) ("That some exempt material may be found
in a document or report of an investigatory character does not
justify cloture as to all of it").
2. Investigatory exemption. Alternatively, the MCAD
maintains that its policy falls within the parameters of G. L.
c. 4, § 7, Twenty-sixth (f), the investigatory materials
exemption to public disclosure. Pursuant to § 7, Twenty-sixth
(f), the MCAD promulgated regulations that became effective in
1999 regarding disclosure of case information and investigatory
materials to the parties and the general public and has provided
data in both open and closed investigations pursuant to that
11
regulation since its inception until the events giving rise to
this case. See 804 Code Mass. Regs. § 1.04 (1999).6
6 Title 804 Code Mass. Regs. § 1.04 (1999) provides:
"(1) Request for Review. Except as otherwise provided in
this Regulation, the record in every charge pending before
the Commission shall be confidential and exempt from M.G.L.
c. 66 and 66A pursuant to M.G.L. c. 4, § 7 (26) (f). The
parties to such a charge shall be allowed access to the
record upon making suitable arrangements at any time after
investigative disposition pursuant to 804 [Code Mass. Regs.
§] 1.15.
"(2) Hearing Records. The official record in every
complaint heard by the Commission, as defined in 804 [Code
Mass. Regs. §] 1.21(9), except such evidence as is placed
under protective order by the Commission or processed as a
pseudonym complaint pursuant to 804 [Code Mass. Regs.
§] 1.10(5)(d), shall be available for public inspection
upon making appropriate arrangements with the Clerk of the
Commission, at any time after Certification to Public
Hearing. The parties shall have access to the entire
official record, unless otherwise ordered.
"(3) Privileged Information. Information protected by the
attorney-work product doctrine, attorney-client privilege,
and deliberative process privilege, as well as any other
information exempt from the definition of public
information at M.G.L. c. 4, § 7 (26) shall not be released
by the Commission pursuant to 804 [Code Mass. Regs.
§] 1.00.
"(4) Public Information. Except as may be placed under
protective order by the Commission or processed as a
pseudonym complaint pursuant to 804 [Code Mass. Regs.
§] 1.10(5)(d), the charge of complainant and the
investigative determination pursuant to 804 [Code Mass.
Regs. §] 1.15 in any matter shall be available for public
inspection upon making appropriate arrangements with the
Commission."
(Emphasis added.)
12
The parties have advanced myriad (and competing) arguments
regarding the applicability (or lack thereof) of the
investigatory exemption and the public interest in disclosure or
nondisclosure of complaints in pending cases. We pass on these
arguments because regardless of the applicability of the
exemption, or the merits of the policy arguments,7 the current
regulation squarely governs, and it requires the production of
the requested information. See 804 Code Mass. Regs. § 1.04(4)
(1999). We set forth some background to provide context.
There are multiple levels of disclosure of charge
information. With respect to parties, when the commission
authorizes a formal investigation of a complaint, see 804 Code
Mass. Regs. § 1.13(1) (1999), a copy of the charge is
7 The policy arguments propounded by the parties contain
factual disputes that would require fact finding regarding the
balancing of the public interest in disclosure, thus barring
summary judgment for the MCAD on this basis. See Boston Globe
Media Partners, LLC, 482 Mass. at 448. For example, the MCAD's
acting chief of enforcement and deputy general counsel submitted
an affidavit stating his opinion that complainants may be
discouraged from filing or pursuing claims unless the charges
remain confidential until the investigation closes, and that
respondents may also be subject to harassment or harm to
reputation. Larrabee served interrogatories requesting examples
or instances where this had occurred, but the MCAD was unable to
produce any. Similarly, the MCAD expressed concern regarding
retaliation against complainants or witnesses if the charge data
were produced. However, the complaint is served on the
respondent at the outset of the investigation, and witness
statements remain confidential until such time as the
investigation is completed and the case is certified to public
hearing.
13
immediately served on the respondent. See 804 Code Mass. Regs.
§ 1.10(7) (1999).8 In addition, the parties are entitled to the
entire case record "at any time after investigative disposition
pursuant to 804 [Code Mass. Regs. §] 1.15." 804 Code Mass.
Regs. § 1.04(1) (1999).
Separate rules apply to the disclosure of complaints and
case records to members of the general public, and these
regulations are dispositive in this case. The "charge of
complainant and the investigative determination pursuant to 804
[Code Mass. Regs. §] 1.15 in any matter shall be available for
public inspection." 804 Code Mass. Regs. § 1.04(4) (1999). The
public also may have access to the entire official record after
certification to public hearing. See 804 Code Mass. Regs.
§ 1.04(2) (1999). Public disclosure (of the complaint, the
investigatory determination, and the case record) is subject to
further limitation if there is an outstanding protective order,
or the case has been processed with a pseudonym complaint. See
804 Code Mass. Regs. § 1.04(2)-(4) (1999).
A duly adopted regulation has the force of law, and we
construe it as we would a statute. See Biogen IDEC MA, Inc. v.
8 The MCAD may dismiss without investigation a case for
reasons set forth in 804 Code Mass. Regs. § 1.13(1)(a) (1999),
such as timeliness, standing, lack of jurisdiction, or the
failure of the charge to state a claim, when further
investigation would not serve the public interest.
14
Treasurer & Receiver Gen., 454 Mass. 174, 190 (2009). The
regulation requires disclosure of charge data and investigative
determination in "any matter" (emphasis added). 804 Code Mass.
Regs. § 1.04(4) (1999). The term "any matter" also appears in
G. L. c. 151B, § 3 (7), which grants the commission broad powers
in "any matter under investigation or in question before the
commission." See Massachusetts Comm'n Against Discrimination v.
Liberty Mut. Ins. Co., 371 Mass. 186, 191-192 (1976) (term "any
matter" applied to commission's subpoena powers at both pre-
probable cause [i.e., investigatory] stage and the post-probable
cause stage of its proceedings). A more restrictive reading of
§ 3 (7) would "essentially ignore[] the words . . . relating to
matters under investigation." State Ethics Comm'n v. Doe, 417
Mass. 522, 531 (1994) (Lynch, J., concurring). We may assume
that the MCAD was aware of this construction of its own statute
when it used the term "any matter" in drafting the 1999
regulation. Cf. College Hill Props., LLC, 465 Mass. at 139
("The Legislature must be assumed to know the preexisting law
and decisions of this court" [citation omitted]); 804 Code Mass.
Regs. § 1.04(4) (1999).
Further, the word "any" in the regulation "mean[s]
precisely that." Sciaba Constr. Corp. v. Frank Bean, Inc., 43
Mass. App. Ct. 66, 69 (1997). A broad construction also
comports with the statutory presumption favoring disclosure
15
under the public records law, thus reading the regulation and
the statute in harmony. See G. L. c. 66, § 10A (d) (iv); Wing,
473 Mass. at 373. The term "any matter" therefore applies, as a
matter of law, to the charge information and dispositions for
both pending and closed investigations.
A regulation controls over policy statements or guidelines
that conflict with the regulation. See Warcewicz v. Department
of Envtl. Protection, 410 Mass. 548, 550 (1991) ("courts will
not hesitate to overrule agency interpretations when those
interpretations are . . . inconsistent with the plain terms of
the regulation itself"); Northbridge v. Natick, 394 Mass. 70, 76
(1985) ("An agency must follow its own regulations even in the
face of inconsistent internal guidelines"). The MCAD argues
that disclosure of some charges would result in the disclosure
of details of a highly personal nature in violation of privacy
protections provided in G. L. c. 4, § 7, Twenty-sixth (c). This
argument proves too much, as the current policy permits the
disclosure of such information, just at a later date. Rather,
we note that the current regulation anticipates the protection
of the privacy interest protected under § 7, Twenty-sixth (c),
by means of pseudonym complaints and protective orders, both of
which give the commission significant statutory tools to protect
16
privacy interests.9 See 804 Code Mass. Regs. § 1.04(2), (4)
(1999).
If the MCAD wishes to consider recalibrating its policy
regarding public disclosure, it must follow the amendment
process. "An agency is bound by the regulations it promulgates
and may not attempt to circumvent the amendment process through
changes in interpretation unsupported by the language of the
regulation. Cf. United States v. Nixon, 418 U.S. 683, 695–696,
. . . (1974) (regulation giving Special Prosecutor power to
contest invocation of executive privilege binding until amended
or revoked)." Fluor Constructors, Inc. v. Occupational Safety &
Health Review Comm'n, 861 F.2d 936, 939–940 (6th Cir. 1988).
This process has the intended benefit of requiring public airing
of the very complex and important questions of personal privacy,
public interest, public access, and statutory mandate presented
here.
3. Breach of contract. Larrabee maintains that the 2009
agreement was a binding contract between the parties that
obligated the commission to provide him with requested data
indefinitely, there being no provision for its expiration. He
9 In any event, the MCAD cannot impose a ban on all
disclosure because of concerns about a discrete subset of cases.
See Worcester Tel. & Gazette Corp., 436 Mass. at 383; Reinstein,
378 Mass. at 290.
17
claims a loss of income as a result, and provided some evidence
of damages on summary judgment.
"We review a court's 'interpretation of the meaning of a
term in a contract,' a question of law, de novo." Balles v.
Babcock Power Inc., 476 Mass. 565, 571 (2017), quoting
EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016). The
2009 agreement provided that the MCAD would provide data to
Larrabee, upon request, for the "most recent three year period."
The information would be provided without charge for the first
two requests, but "[t]hereafter" the commission would be
permitted to assess the customary charges pursuant to 804 Code
Mass. Regs. § 12.04 (2004). On the slender thread of the word
"thereafter," Larrabee asserts an unambiguous right to records
for the indefinite future.
When contract language is unambiguous, it must be construed
according to its plain meaning. Balles, 476 Mass. at 571-572.
The language here is ambiguous in several respects, but we can
conceive of no construction of the 2009 agreement which would
permit us to conclude that the MCAD agreed to bind itself to
producing records to Larrabee in perpetuity, even if the
commission changed its policy regarding disclosure of records to
all other requestors. The commission's efforts to revise its
policy may have been found wanting here, but that does not mean
that the commission also breached a contract with Larrabee. The
18
judge did not err in denying relief under count 2 of the
complaint.
4. Attorney's fees. Larrabee has requested appellate
attorney's fees pursuant to G. L. c. 66, § 10A, which was added
to c. 66 by St. 2016, c. 121, § 10. While the Supreme Judicial
Court has expressed a preference for application of the amended
statute where feasible, see note 1, supra, the Legislature has
directed that "[n]otwithstanding any general or special law to
the contrary, sections 9 and 10 of this act shall not apply to
public records requests submitted under section 10 of chapter 66
of the General Laws before the effective date of this act and no
obligation imposed by sections 9 and 10 of this act shall be
enforceable or deemed relevant in an appeal pending before the
supervisor of records or a court on the effective date of this
act." St. 2016, c. 121, § 18.
At the time Larrabee made the requests for records in 2015
and 2016, the statutory provision applicable to the request,
G. L. c. 66, § 10, as amended through St. 2010, c. 256, §§ 58,
59, did not provide for the award of fees. "As a general rule
in Massachusetts, a litigant must bear his own expenses
including attorney's fees, except where a statute permits the
award of costs, a valid contract [or] stipulation provides for
costs, or rules concerning damages permit[] recovery."
Ventresca v. Town Manager of Billerica, 68 Mass. App. Ct. 62,
19
66 n.12 (2007), quoting Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Dep't of Mental Retardation (No. 1), 424
Mass. 430, 468 (1997). Because Larrabee was not entitled to
fees at the time he made the requests, he may not seek an award
of fees under the 2017 amendments to G. L. c. 66, § 10A. See
St. 2016, c. 121, § 18.
Conclusion. For the foregoing reasons, the judgment is
vacated. Because the meaning of the governing regulation
presents a question of law, Larrabee is entitled to judgment on
count 1 of the first amended complaint.10 The matter is remanded
for further proceedings consistent with this opinion.11
10Larrabee did not contest the denial of his claim for
attorney's fees under count 3 on appeal, and any challenge to
the judge's ruling on that matter is therefore waived. See
Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1629
(2019). In view of our disposition, we need not reach
Larrabee's alternative claims presented in count 4 of the first
amended complaint, that the records requested are quasi-judicial
records that must be produced as a matter of common law, the
First Amendment, and G. L. c. 6, § 172 (m). Larrabee also
contends that the current policy violates the public records
act. Because our decision obviates the existence of a
controversy, we decline to reach these questions. See Gay &
Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. 132,
135 (2002) (disapproving of advisory opinions).
11At oral argument the parties agreed that the operative
dispute in the case was the legal question concerning the MCAD's
nondisclosure of charge data while investigations were pending,
and that the form in which data was produced was not at issue on
appeal. See 950 Code Mass. Regs. § 32.07(1)(c), (d) (2017)
(provision of records in electronic form). See also G. L.
c. 66, § 6A (d); 950 Code Mass. Regs. § 32.07(1)(f) (2017)
(provision of records in segregable form is not creation of new
record). Any issues regarding the form of the data produced
20
So ordered.
that may arise may be addressed by the parties and the judge on
remand.