Shaffer, Maya v. Massachusetts Bay Transportation Authority (SPR 20150378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 9, 2015 SPRlS/378 Ms. Susan M. Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Krupanski: I have received the petition of Maya Shaffer of The Bay State Examiner appealing the response ofthe Massachusetts Bay Transportation Authority (MBTA) to her March 19, 2015 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Ms. Shaffer requested a copy of three categories of records regarding a specific incident, and issues associated with "the release of the video" associated with that incident: 1. Records of "[l]egal fees associated" with a lawsuit "to force the record to be released"; 2. "All reports, internal affairs reports, and arrest reports about this incident"; and 3. "All correspondence ... regarding the incident" Initially, the MBTA did not respond in a timely manner to the requests by Ms. Shaffer, however after the intervention of a member of my legal staff, the MB T A provided a written response on April21, 2015. See SPR15/228 Determination ofthe Supervisor of Records (April 28, 2015). In its response the MBTA denied Ms. Shaffer's request in its entirety, and Ms. Shaffer appealed. 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 District Attorney for the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Susan M. Krupanski, Esq. SPR15/378 Page Two September 9, 2015 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). MBTA denial of access to all categories of records With respect Ms. Shaffer's request for records of legal fees under Request 1, the MBTA claims all responsive records are exempt from disclosure under the common law attorney-client privilege. The MBTA fails to provide any citation to support this claim. With respect to Ms. Shaffer's request for reports and correspondence related to the underlying incident under Request 2 and Request 3, the MBTA claims all responsive are exempt from disclosure as the responsive records "directly apply to unresolved matters to which litigation may be imminent or active." G. L. c. 4, § 7 (26) (d); Lafferty v. Martha's Vineyard Commission, 17 Mass. L. Rprt. 501 (2004); Kent v. Commonwealth, 12 Mass. L. Rprt 165 (2000). Request 1: Records of legal fees may not be withheld in entirety under attorney client privilege The MBTA claimed that the common law attorney-client privilege allows the MBT A to withhold all legal invoices for legal work performed by outside legal counsel concerning the incident. While the MBTA failed to provide a citation to support this claim, the issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609,614-615 (1993). The attorney-client privilege protects confidential communications between and 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). In a more recent case in the State of New Hampshire, the Supreme Court of New Hampshire found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton,

Ms. Susan M. Krupanski, Esq. SPR15/378 Page Three September 9, 2015 20 A.3d 994, 1001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681,691,693 (2000). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at 1002. Further, the Court refused to adopt a per se rule that all descriptive narratives contained in invoices for legal services are subject to the attorney-client privilege. Id. at 1001. The MBT A has failed to prove that every notation of detail within the content of the records of fees for legal services is exempt as attorney-client privileged communication. Accordingly, I find the MBTA has failed to meet its burden in stating, with specificity, that any invoices or records detailing fees for legal services are exempt. Requests 2 and 3: Deliberative process not established The MBTA cited the deliberative process exemption, as well as cases interpreting this exemption, to justify nondisclosure of records. The MBT A claimed that of "reports, internal affairs reports, and arrest reports" as well as "correspondence ... regarding the incident" are exempt as records that relate to "umesolved matters to which litigation may be imminent or ... active" (emphasis added). Exemption (d) allows a record custodian to withhold: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause 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 premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office ofHuman Services, 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.) The MBTA also stated that Lafferty v. Martha's Vineyard Commission, 17 Mass. L. Rptr. 501 (2004) and Kent v. Commonwealth, 12 Mass. L. Rptr. 165 (2000) support its decision to withhold the responsive records because litigation is imminent or active. However, the MBTA has not provided Ms. Shaffer or this office with any case docket names, case docket

Ms. Susan M. Krupanski, Esq. SPR15/378 Page Four September 9, 2015 numbers or any other specifics concerning litigation on this incident. Further, there is no showing by the MBTA that the actual records are the subject of a dispute, as required by a reading of Exemption (d) coupled with the above-captioned cases. Conclusion: failure to meet burden to support withholding all records I find the MBTA has failed to meet its burden in denying access to government records. Accordingly, whereas the MBTA has not overcome the presumption that the requested records are public, the MBTA is hereby ordered, within ten (1 0) days of this order, to provide Ms. Shaffer with the requested records. If the MBTA maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Ms. Shaffer a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. liams Supervisor of Records cc: Ms. Maya Shaffer