Hollman, Esq., Steven v. Office of the Governor - Legal Office (SPR 20140429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 17, 2014 SPR14/429 Mr. Jamie Hoag, Esq. Office of the Governor State House, Room 271 Boston, MA 0213 3 Dear Deputy Chief Legal Counsel Hoag: This office has received the petition of Steven P. Hollman, Esq. appealing the response ofthe Office ofthe Governor's Legal Counsel (Governor's Office) to his request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, Attorney Hollman requested copies of records relating to the declaration of a public health emergency. Included with a September 11, 2014letter to Attorney Hollman, you provided copies of records responsive to this request. Furthermore, you stated that certain responsive records have been withheld from disclosure pursuant to Exemption (d) of the Public Records Law and the common law attorney-client privilege. Exemption (d) The applicability of Exemption (d) is first considered. This exemption applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7 (26)( d) Exemption (d) is intended to avoid the disclosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The deliberative process is insulated from scrutiny only until such time as the process is One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Jamie Hoag, Esq. SPR14/429 Page Two October 17, 2014 completed. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). In an October 10, 2014 email to this office, you stated that the Governor's Office has withheld approximately 15-20 responsive records pursuant to this exemption. You further stated that the withheld records relate to "discussions of policy issues relating to the Administration's ongoing response to the existing opiate addiction crisis." In a telephone conversation with an attorney on my staff, you further explained that the Governor's Office has provided Attorney Hollman with copies of records relating to areas of policy regarding this issue where decisions have already been developed or finalized. The withheld records relate to the areas of these policy positions where deliberation remains ongoing within the Governor's Office. After further discussions with you, I will rely on your representation of the policy deliberations that remain ongoing regarding this matter. See Konover Mgt. Corp. v. Planning Bd. of Auburn, 3 2 Mass. App. Ct. 319, 32 6 ( 1992) (the strong presumption that a public official will perform honestly and impartially and will properly discharge the duties of his office in the public interest). Accordingly, the Governor's Office may permissibly withhold certain responsive records pursuant to Exemption (d). Please be advised that upon the completion of the Governor's Office's ongoing deliberations regarding these policy · positions, the applicability of Exemption (d) with respect to these records will cease. Common Law Attorney-Client Privilege The Supreme Judicial Court (SJC) has 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). In order for the claim of attorney-client privilege to be valid, the records 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). In your October 10th email, you stated that approximately 25-30 responsive records have been withheld pursuant to this privilege. Furthermore, you stated that these records

Mr. Jamie Hoag, Esq. SPR14/429 Page Three October 17, 2014 consist of memoranda and emails drafted by legal counsel within the Governor's Office and Executive Office of Health and Human Services, and provide internal legal advice to members of the Governor's Office and the Administration. Upon a careful review of this matter, it is my finding that the Governor's Office may permissibly withhold this set of records pursuant to the attorney-client privilege. Based on your discussions with this office, it is my understanding that the withheld records consist of either requests for, or responses to requests for, legal advice. Furthermore, these communications were made in confidence and you have confirmed for this office that these communications were restricted to internal administrative personnel, thus preserving the attorney-client privilege. Whereas the Governor's Office may permissibly withhold certain responsive records pursuant to Exemption (d), and other responsive records pursuant to the attorney-client privilege, this administrative appeal is now closed. Supervisor of Records cc: Mr. Steven P. Hollman, Esq.