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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 preprobable 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

 

10 Larrabee 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).

11 At 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.