Donnelly, Thomas v. Department of Revenue (SPR 20150039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords April10, 2015 SPRlS/039 Mr. David Berch, Esq. Legal Division-Litigation Bureau Massachusetts Department of Revenue ih 100 Cambridge Street, Floor P.O. Box 9565 Boston, MA 02114 Dear Attorney Berch: I have received the petition of Thomas Donnelly of NBC Universal Media, LLC appealing the response of the Massachusetts Department of Revenue (DOR) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Donnelly requested copies of all audit narratives and audit logs prepared in connection with DOR's audit of the National Broadcasting Company, Inc. and its affiliates during a specified time period. Initially, you provided Mr. Donnelly with partially-redacted responsive records. You provided a supplemental response in a December 18, 2014 email in which you claimed the redactions were made pursuant to G.L. c. 62C, § 21(a), G.L. c. 62C, § 21(d), and the common law attorney-client privilege. In an additional response dated January 14, 2015, you removed certain redactions in light of receiving a power of attorney from Mr. Donnelly; however, certain information remained redacted pursuant to G.L. c. 62C, § 21(d) and the attorney-client privilege. It has come to this office's attention that Mr. Donnelly may be able to obtain unredacted copies of the remaining requested records through channels other than the Public Records Law due to NBCUniversal Media, LLC's status as a taxpayer seeking its own tax information. In phone conversations with a member of my staff, you indicated that DOR may be able to further remove redactions from the responsive records if Mr. Donnelly provides DOR with an additional power of attorney. As such, Mr. Donnelly is encouraged to provide this power of attorney and any other information DOR requests to allow NBCUniversal Media, LLC to receive its own tax information. DORis reminded that the Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. David Berch, Esq. SPR15/039 Page Two April10, 2015 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (199 5) (custodian has the burden of establishing the applicability of an exemption). 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, § 1 0(c ) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist., 419 Mass. at 511. This burden also applies to a custodian's claim that information may be withheld due to attorney-client privilege. The attorney-client privilege protects confidential communications between an attorney and his client. In order for the claim of attorney-client privilege to be valid, the custodian has the burden of not only proving the existence of an attorney-client relationship, but also (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. v. Div. of Capital Asset Mgmt., 449 Mass. 444, n.9 (2007). Due to the availability of alternate methods of acquiring records afforded to NBCUniversal Media, LLC as a taxpayer seeking its own tax information, I decline to opine on whether DOR's responses to date comply with the Public Records Law. Mr. Donnelly may appeal to this office any unsatisfactory response from DOR if he is unable to obtain the remaining requested records through alternate means. I will now consider this administrative appeal closed. wn Supervisor of Records cc: Mr. Thomas J. Donnelly Ms. Sarah Wellings