Moffat, Shane v. Executive Office of Public Safety and Security - Department of Correction (SPR 20140063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 21, 2014 SPR14/063 Mr. David J. Rentsch, Esq. Department of Correction, Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Attorney Rentsch: This office has received the petition of Shane Moffat appealing your response for the Department of Correction (Department) to his request for public records. See G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08( 6). Specifically, Mr. Moffat requested copies of records relating to Senate Bill2125 (sections 23 and 24) and House Bill3818 (sections 11 and 32). In a January 8, 2014 letter to Mr. Moffat, you stated that the Department had no records related to Senate Bill2125. Accordingly, this portion of Mr. Moffat's appeal is closed. You further stated that the Department did possess records related to House Bill 3138, but would withhold them from disclosure pursuant to the common law attorney-client privilege. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Furthermore, a records custodian seeking to withhold records pursuant to the attorney-client privilege holds the burden of not only proving the existence of an attorney-client relationship, but also establishing: (1) that the communications were received from a client during the course ofthe client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co., 449 Mass. fn 9; Colonial Gas Co. v. Aetna Cas. & Sur. Co., 144 F.R.D. 600, 604 (D. Mass. 1992). It is my finding that the Department has failed to satisfy its burden in responding to Mr. Moffat's request. The Department has provided no specificity with respect to the applicability of the attorney-client privilege to the records responsive to this request. The OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. David J. Rentsch, Esq. SPR14/063 Page Two March 21, 2014 Department is not pennitted to issue a blanket denial without providing any further information with respect to these records. The Department is hereby ordered to provide Mr. Moffat with a more detailed explanation of its privilege claim within ten (1 0) calendar days in order to satisfy its burden in responding to his request. The Department's additional response should also identify the number of responsive records and confirm that all Department records have been searched as part of providing this revised response to his request. If the Department is unable to satisfy this burden, the Department is hereby ordered to provide Mr. Moffat with copies of all responsive records. Accordingly, this administrative appeal is closed. Supervisor of Records cc: Mr. Shane Moffat