Frank Phillips v. Executive Office for Administration & Finance (SPR 20160075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 18, 2016 SPR16/075 Mr. Dominick Ianno Chief of Staff & Communications Director Executive Office of Administration and Finance State House, Room 3 73 Boston, MA 02133 Dear Mr. Ianno: I have received the petition of Frank Phillips of The Boston Globe appealing the response of the Executive Office of Administration and Finance (Office) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Phillips requested copies of records related to the Commissioner of Revenue. The Office initially responded on January 19, 2016 and Mr. Phillips appealed this response. 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). Timeliness of response Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Mr. Phillips submitted his request on December 10, 2015 and the Office responded on January 19, 2016, forty days subsequent to his request. The Office is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Dominick Ianno SPR16/075 Page 2 February 18, 2016 Response dated January 19 In the Office's January 19 response, you explain the Department ofRevenue (Department) "is an agency under the purview ofthe [Office]" and "[b]oth the [Office] and the [Department] have reviewed the correspondence and documents and have determined that we are not in possession of any public records responsive to your request under the public records law." This response is unclear as to whether the Office or the Department was withholding any responsive records. Supplemental responses Subsequent to the opening of this appeal, in an email to an attorney on my staff dated February 12, 2016 you confirmed the Office has no documents responsive to Mr. Phillips' request. In an additional response dated February 18, 2016 you indicate that although the Office has no responsive documents, "the [Department] confirms it has nine email exchanges that are potentially responsive to the request, but all nine are protected attorney-client privileged communications." 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 Wh~lesale Electric Co., 414 Mass. 609, 614-15 (1993). 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). 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.

Mr. Dominick Ianno SPR16/075 Page 3 February 18,2016 As a result, the Office 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, § lO(a). Conclusion For the reasons discussed above, the Office is hereby ordered, within ten (1 0) days, to provide Mr. Phillips with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Office maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Phillips 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. To assist the Office in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also 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 her information. Enclosure cc: Mr. Frank Phillips