Matthew Stout v. Massachusetts Bay Transportation Authority (SPR 20160054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 18, 2016 SPR16/054 Mr. Joe Pesaturo Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Mr. Pesaturo: l.have received the petition of Matthew Stout of the Boston Herald appealing the response of Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Stout requested records related to a leave management consultant's recommendations to the MBTA. In responses dated December 23, 2015, the MBTA provided a summary of the recommendations but denied access to "the full report" under the attorney-client privilege. Mr. Stout appealed the withholding of the report. 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). Common law attorney-client privilege The attorney-client privilege protects confidential communications between an attorney and his client. 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, 614-15 (1993). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Joe Pesaturo SPR16/054 Page 2 February 18, 2016 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 its written responses, the MBTA states "the full report is attorney client privileged, and will not be released at this time." In addition, you stated "[i]t was prepared by legal counsel at the [MBTA]'s request, seeking legal advice." However, these responses fail to establish the existence of an attorney-client relationship because the request was for a report produced by a "consultant" and it is unclear if this consultant was acting in its capacity as counsel. Further, it does not address whether the communications were made in confidence, nor whether the privilege has been waived; particularly in light of the fact that the MBTA provided a summary of recommendations to Mr. Stout. See Suffolk, 449 Mass. at 450 n.9. As a result, the MBTA failed to meet its burden of explaining with specificity how the responsive report, in its entirety, are exempt from disclosure pursuant to the attorney-client privilege. See Reinstein v. Police Cornrn'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, § lO(a). It should be noted that, subsequent to the opening of this appeal, an attorney on my staff sent a copy of this appeal file to Susan Krupanski, Esq., Assistant General Counsel at the MBTA. Conclusion For the reasons discussed above, the MBTA is hereby ordered, within ten (10) days, to provide Mr. Stout with the responsive report or a revised response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the MBTA maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Stout 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.

Mr. Joe Pesaturo SPR16/054 Page 3 February 18, 2016 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. To assist the MBTA in responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further in rmation. cc: Mr. Matthew Stout Ms. Susan Krupanski, Esq.