Wallack, Todd v. Office of the District Attorney - Worcester District (SPR 20150150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecm·ds May 18,2015 SPRlS/150 Mr. Christopher P. Hodgens, Esq. Assistant District Attorney Worcester County District Attorney's Office 225 Main St. G30 1 Worcester, MA 01608 Dear Attorney Hodgens: I have received the petition of Todd Wallack of the The Boston Globe appealing the response of the Worcester County District Attorney's Office (DAO) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a copy of the data contained within the computer system the DAO uses to track criminal court cases. This request includes all the rows, columns, and column titles within those data tables for all years that are available. Mr. Wallack indicated he is willing to narrow his request to data tables that contain specifically identified information. In your February 5, 2015 written response, you denied his request, claiming that the responsive record is exempt from disclosure pursuant to the attorney-client privilege. 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. 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (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, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Christopher P. Hodgens, Esq. SPR15/150 Page Two May 18,2015 Common law attorney-client privilege The attorney-client privilege protects confidential communications between an attorney and his client. However, 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, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). The DAO's response states that the "[d]atabase information in this format constitutes attorney-client communications that are not subject to the public record law." You also state that the requested database is one of the primary means of communication between the assistant district attorneys and the District Attorney and includes updates on the status of litigation and assists in making tactical decisions. Further, you state that "[w]holesale disclosure of the contents of the database, including the data fields that are of interest to the District Attorney, would violate a 'fundamental component ofthe administration of justice."' The response also includes language from various cases including the Suffolk decision. This response fails to prove the existence of an attorney-client relationship because it does not explain who the attorney and client are in this context. Further, it does not address whether the communications were received during the course of the client's search for legal advice, nor whether the communications were made in confidence, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. As a result, the DAO failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure pursuant to the attorney-client privilege. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (stating that the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Massachusetts Supreme Judicial Court found that a records custodian must provide a privilege index to withhold records under the common law attorney-client privilege. See Suffolk, 449 Mass. at 460. Whereas the DAO has not done this, it has not met its burden under the law to permit such withholding. Accordingly, the DAO is hereby ordered, within ten (10) days ofthis order, to provide Mr. Wallack with the requested records. If the DAO maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days, provide Mr. Wallack with a

Mr. Christopher P. Hodgens, Esq. SPR15/150 Page Three May 18,2015 written explanation, with specificity, how a particular exemption applies to each withheld portion of the responsive record. If the DAO intends to withhold any records pursuant to the common law attorney-client privilege, it must provide Mr. Wallac with a privilege index. urs, illiams cc: Mr. Todd Wallack