930 CMR, § 3.02

Current through Register 1531, September 27, 2024

Section 3.02 - Disclosures Containing Confidential Information

(1) M.G.L. c. 268A, 930 CMR 5.00: Exemptions from M.G.L. c. 268A and M.G.L. c. 268B Related to Gifts, and 930 CMR 6.00: Exemptions Unrelated to Gifts require written disclosures in certain circumstances. These disclosures are public records.

(2) For purposes of 930 CMR 3.02, confidential information is information that is legally required to be kept confidential, or that is protected from disclosure by a legally recognized privilege.

(3) If a disclosure required by M.G.L. c. 268A, 930 CMR 5.00: Exemptions from M.G.L. c. 268A and M.G.L. c. 268B Related to Gifts, or 930 CMR 6.00: Exemptions Unrelated to Gifts will contain confidential information, the public employee making the disclosure must proceed in one of the following ways:

(a) If the disclosure is required to be made to an appointing authority, then the public employee shall include the confidential information in the disclosure, shall conspicuously mark the disclosure "CONFIDENTIAL", and shall give the disclosure to his or her appointing authority, if the applicable legal requirement of confidentiality or privilege permits doing so. The appointing authority shall maintain the confidentiality of that disclosure. The public employee shall also provide the appointing authority, and any other entity to which the disclosure is required to be given, with a version of the disclosure omitting the confidential information ("redacted disclosure"), conspicuously marked "REDACTED". The redacted disclosure shall be maintained as a public record. If, subsequently, the requirement of confidentiality or the privilege ceases, the unredacted disclosure shall be made publicly available.

(b) If the public employee is a member of a public board, commission, council, or similar entity ("board"), and cannot make a disclosure pursuant to 930 CMR 3.02(3)(a) because the applicable legal requirement of confidentiality or privilege does not permit the confidential information to be shared with the employee's appointing authority or otherwise made public, the following procedure may be used only for disclosures made pursuant to M.G.L. c. 268A, § 23(b)(3). If the applicable legal requirement of confidentiality or privilege permits the board to be given the confidential information, then the public employee shall include the confidential information in the disclosure, shall conspicuously mark the disclosure "CONFIDENTIAL", and shall give the disclosure to the board. The board shall maintain the disclosure as a confidential record. The public employee shall also complete a version of the disclosure omitting the confidential information ("redacted disclosure"), conspicuously marked "REDACTED", and shall file it with his or her appointing authority, or, if elected, shall file it in a manner which is public in nature, such as with the municipal clerk or the Commission. The redacted disclosure shall be maintained as a public record. If, subsequently, the requirement of confidentiality or the privilege ceases, the unredacted disclosure shall be made publicly available.

(c) If the public employee is unable to make a disclosure pursuant to 930 CMR 3.02(3)(a) or (b) for any reason, including because the public employee has no appointing authority, then the public employee may not take any action that otherwise would be permitted under M.G.L. c. 268A, 930 CMR 5.00, or 930 CMR 6.00 if a disclosure were made.

Example: An assistant district attorney is assigned to work on a grand jury investigation in which a witness is someone he knows from law school, such that the attorney is required to make a disclosure by M.G. L. c. 268A, § 23(b)(3). The attorney prepares two versions of the disclosure: a version containing all the facts, which he gives to his appointing authority, the District Attorney, and a version omitting confidential information, which the District Attorney maintains as a public record. After an indictment has been issued and the grand jury minutes disclosed to the defendant, the unredacted disclosure should be made publicly available.

Example: A state board investigates charges of misconduct by licensed professionals. The board's enabling act requires that board investigations be kept confidential. A witness in a board investigation is a long-time personal friend of a board member, such that, pursuant to M.G.L. c. 268A, § 23(b)(3), the board member is required to make a written disclosure to his appointing authority, the Governor, of his friendship with the witness prior to participating in decisions concerning the investigation, to avoid an appearance that he could be improperly influenced by that friendship. However, the statutory requirement of confidentiality prohibits the board member from disclosing facts about the investigation to the Governor. The board member prepares two versions of the disclosure: a full version, which he shares with the other members of the board, and a redacted version, which he provides to the Governor. Thereafter, the board member may participate in board action concerning the investigation.

Example: A select board will be asked to consider a matter by an applicant. One of the selectmen is an attorney who represents the applicant in an unrelated confidential legal matter. The selectman knows that his client wants his representation of the applicant in the unrelated matter to remain confidential. The selectman is unable to disclose his familiarity with the applicant, as required by M.G.L. c. 268A, § 23(b)(3), because his client's identity is protected by the attorney-client privilege. The selectman also cannot use the procedures set forth in 930 CMR 3.02(a) or (b) because the selectman has no appointing authority, and because he cannot share the fact that the applicant is his client with the other select board members. The selectman is required to abstain from participating in the matter in which the applicant is involved.

930 CMR, § 3.02