Matthew Stout v. Massachusetts Bay Transportation Authority (SPR 20160183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 24,2016 SPR16/183 Mr. John Englander, Esq. General Counsel MassDOT and MBTA 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Englander: I 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 § lO(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 its initial responses, 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. Previous appeal This request was the subject of a previous appeal. See SPR16/054 Determination of the Supervisor of Records (February 18, 2016). In my February 18 determination, I found the MBTA failed to meet its burden of explaining with specificity how the responsive report, in its entirety, is exempt from disclosure pursuant to the attorney-client privilege. As a result, I ordered the MBTA 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. The MBTA provided a response to the February 18 order in which it continues to withhold the entirety of the report under the attorney-client privilege and Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Mr. Stout informed this office that he objects to this response and this appeal was opened as a result. In camera review In order to facilitate my review of the matter, I ordered the MBTA to provide this office with an unredacted copy of the responsive report for an in camera review. The MBTA promptly OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. John Englander, Esq. SPR16/183 Page 2 March 24,2016 complied with this order and I thank the MBTA for its cooperation. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L.c. 66, § 1. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). A records custodian claiming the attorney-client privilege under the Public Records Law 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, 449 Mass. at 450 n.9; 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 attorney-client privilege pertains only to disclosure of confidential client communications; it does not apply to mere facts. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). In its response, the MBTA indicates it entered into a legal services agreement with the law firm of Morgan, Brown & Joy, LLP to "audit and report on and recommend changes" to the MBTA's employee absence and leave policies. Further, you state the firm "provided a confidential memorandum containing its findings and legal advice regarding the Leave Management review to the MBTA." You claim the confidentiality of this report has been maintained and that the privilege has not been waived. Upon my in camera review ofthe responsive report, I find the MBTA has not established how the report, in its entirety, constitutes privileged communications received from a client during the course of his search for legal advice from his attorney. As a result, I find the MBTA has not met its burden to withhold the entirety of the report under the attorney-client privilege. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (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).

Mr. John Englander, Esq. SPR16/183 Page 3 March 24, 2016 Exemption (d) The MBTA also claims that the report may be withheld pursuant to Exemption (d) of the Public Records Law. Exemption (d), also known as the deliberative process exemption, allows for withholding of records that are: 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 of Human 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.) To support its Exemption (d) claim the MBTA cites DaRosa v. City ofNew Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation oflitigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions." Id. The MBTA has not claimed that the responsive report was prepared in anticipation of litigation or trial. Further, the MBTA has not shown how any factual non-deliberative information may be withheld. Therefore, I find the MBTA's response fails to show how it may withhold the entire report under DaRosa and Exemption (d). Conclusion For the reasons discussed above, the MBTA is hereby ordered, within ten (10) days, to provide Mr. Stout with 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 ofthe responsive records are exempt from disclosure it must, within ten (10) days provide to Mr.

Mr. John Englander, Esq. SPR16/183 Page4 March 24, 2016 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(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 ust provide the responsive records. cc: Mr. Matthew Stout