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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.
