Herman, Colman v. Massachusetts Gaming Commission (SPR 20140089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 6, 2014 SPR14/089 Ms. Catherine Blue, Esq. General Counsel Massachusetts Gaming Commission 84 State Street; 1oth Floor Boston, MA 02109 Dear Attorney Blue: I have received a petition from Colman M. Herman regarding the non-response of the Massachusetts Gaming Commission (Commission) to his December 31, 2013 request for public records. G. L. c. 66 § 10(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested a copy of all communications, including letters, memoranda, emails, faxes, notes and reports concernmg: 1. Allegations of conflict of interest on the part of Steven Crosby in his capacity as Commissioner of the Commission, and 2. A lawsuit filed against the Commission by Caesars Entertainment. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. It is my understanding that the Commission through Director of Communications Elaine Driscoll acknowledged Mr. Hern1an's request. However, he was neither provided with a written response nor a written, good faith estimate for the cost of providing him with the records within ten (1 0) days. It was not until the intervention of this office that the Commission provided Mr. Herman with an estimate, and then copies of the records on February 24, 2014, some eight (8) weeks after his request. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Catherine Blue, Esq. SPR14/078 Page Two May 6, 2014 The Commission is reminded that a record custodian has a duty to comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner of Education, 439 Mass. 124 (2003). Denial by custodian; appeal to the Supervisor of Records The Commission failed to inform Mr. Hern1an of his right to file an appeal with the Supervisor of Records. A custodian of records has a duty to inform a requester in the custodian's written response, that the requester has a right to file an appeal with the Supervisor of Records should he or she be denied access to records. See 950 C.M.R. 32.08(1) (The custodian shall advise the person denied access of his or her remedies under 950 C.M.R. 32.00 and G. L. c. 66, § 10(b)); see also 950 C.M.R. 32.08(2). On February 24, 2014, Mr. Hern1an was provided with the records, but the Commission did not include a cover letter to inform him if any records had been withheld and if so which exemptions of the Public Records Law. Neither did the Commission inform him in writing that he would receive two (2) pages of the records in redacted format. It wasn't until Mr. Herman contacted Ms. Driscoll that same day to inquire, that she responded, "If there were emails that were covered by the attorney client privilege, they were withheld." (emphasis added). I find that this response from the Commission to Mr. Herman does not meet the burdens imposed by the Public Records Law and its Regulations. Furthern1ore, Mr. Herman received two (2) pages of records that were redacted, but the Commission failed to inform him in writing either before production or at the time of production of the records that the records were redacted pursuant to a particular exemption, and specifically how that exemption applies to withhold the infonnation contained in the record. Given that the ability to inspect the records of government is fundamental to our democracy, there is a presumption that all governmental records are public records. Disclosure of governmental records is favored by the presumption that the record sought is public. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). See The Harvard Crimson, Inc. v. President & Fellows of Harvard College; Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). In order to withhold a record requested or content contained in a record pursuant to the Public Records Law, the record custodian is charged with the duty of proving with specificity how a particular exemption applies to each individual record requested. (emphasis added). See G.L. c. 66, § 10( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511

Ms. Catherine Blue SPR14/089 Page Three May 6, 2014 (1995) (custodian must offer specific proofthat the records sought are of a type to which an exemption applies). Common law attorney-client privilege On April 14, 2014 after Mr. Herman appealed to this office for a second time concerning his requests to the Commission, an attorney on my staff contacted you to inquire if any records were withheld pursuant to the common law attorney-client privilege. You informed this office that the Commission withheld emails regarding legal advice concerning the litigation that is active, and on-going. You stated that the Commission claimed the attorney-client privilege on the communications ( emails) between the Commission (the client) and its legal counsel regarding legal advice on the issues involved in the litigation and the strategy of the litigation. You were advised by an attorney on my staff to send Mr. Herman a written response explaining the withheld emails under the common law attorney-client privilege. On April 15, 2014, you provided Mr. Hennan with a written response concerning the emails and the attorney-client privilege claim. In 2007, the Supreme Judicial Court (Court) held that confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. Suffolk Construction Co.,Inc. v. Division of Capitol Asset Management. 449 Mass. at 449-450. The attorney-client privilege shields from the view of third parties all confidential communications between a client and the client's attorney undertaken for the purpose of obtaining legal advice. Id., at 448. In order for the claim of attorney-client privilege to be valid, the record custodian has 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 of the 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). After the telephone discussion between you and an attorney on my staff and my review of the Commission's April15111 response, I find that the withheld email communications meet the criteria outlined by the Court in Suffolk in this determination as subject privileged materials, and are communications that meet the Court's criteria. Therefore, I find that the Commission has properly withheld the email communications pursuant to the common law attorney-client privilege.

Ms. Catherine Blue SPR14/089 Page Four May 6, 2014 Two (2) pages of redacted records On April 14th' you informed this office that personal information was redacted from two (2) pages of records provided to Mr. Herman, however, you failed to claim any exemptions in the Public Records Law for those redactions. An attorney on my staff stated to you at that time that the Commission must claim an exemption in order to withhold the information in the record, and must prove with specificity how that exemption applies to withhold the information. You offered no claim of any exemption for the redactions, other than a statement indicating the withheld portions consisted of personal information. My staff attorney advised you that the Commission must send Mr. Herman a letter that explains what exemption allows the Commission to withhold the information in the two (2) pages of redacted records and why the exemption applies to redact that information. On April 15, 2014, you provided Mr. Herman and this office with a written explanation concerning the emails and the attorney-client privilege claim, however the Commission failed, a second time, to claim an exemption to withhold the information in the two (2) pages of redacted records. I find that the Commission has failed to meet its burden under the Public Records Law. Absent specific exemption claim the Commission is hereby ordered to provide Mr. Herman with an un redacted copy ofthose two (2) pages of records within ten (10) days. To assist the Commission in responding to Public Records requests in the future, enclosed with this determination is a copy of The Guide to the Massachusetts Public Records Law. This administrative appeal is closed. Supervisor of Records Enclosure cc: Mr. Colman M. Herman