Colman Herman v. Massachusetts Board of Registration in Medicine (SPR 20160734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 27, 2016 SPR16/734 Mr. George Zachos Executive Director Board of Registration in Medicine 200 Harvard Mill Square, Suite 300 Wakefield, MA 01880 Dear Mr. Zachos: I have received the petition of Colman M. Herman appealing the response of the Board of Registration of Medicine (Board) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested copies of certain Board members and staff emails. Previous appeal This request is the subject of a previous appeal. See SPR16/293 Determination of the Supervisor of Records (May 4, 20 16). In compliance with my order the Board provided a supplemental response to Mr. Herman on July 22, 2016. On that same day, Mr. Herman narrowed his request to include only those records found in a specific individual's files. The Board responded to this request with a letter dated September 14, 2016 in which it provided certain records but withheld others under the common law attorney-client privilege. Mr. Herman appealed this response. The Public Records Law 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 ofthe Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. George Zachos SPR16/734 Page2 September 27, 2016 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. 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 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 ofthe responsive record. The Board's September 14 response In the Board's September 14 response you indicate the Board provided two (2) documents "comprised of a series of emails, portions of which have been redacted, as the redacted portions are attorney-client communications regarding legal advice, are privileged, and thus, not subject to disclosure." You also explain "[:f]ive additional responsive documents have not been provided as the entire communications constitute attorney-client communications regarding legal advice, are privileged and, thus, not subject to public disclosure." You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) to support the attorney-client privilege claims. Attorney-client privilege 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). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Based on the Board's response, I find it has not met its burden of explaining how the responsive records, or portions thereof, fall within the attorney-client privilege in the manner described by Suffolk. In addition, based on a review of the records provided to this office, it is unclear whether the Board provided a privilege index to help support its attorney-client privilege claim. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460.

Mr. George Zachos SPR16/734 Page 3 September 27, 2016 Further, in his appeal petition Mr. Herman indicates "the [B]oard's production consists of two sets of documents, but they are the exact duplicates." The Board must clarify whether it provided identical documents with its September 14 response. I understand an attorney on my staff contacted you about this appeal. Order Accordingly, the Board is hereby ordered to provide Mr. Herman with a response to the request within ten (1 0) days, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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 a pre@sec.state.ma.us. cc: Mr. Colman M. Herman