Lisa F. Glahn, Esq. v. Massachusetts Department of Transportation - Registry of Motor Vehicles (SPR 20160872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records October 21, 2016 SPR16/872 William E. McVey Massachusetts Department of Transportation Registry of Motor Vehicles Vehicle Inspection P.O. Box 55892 Boston, MA 02205-5892 Dear Attorney Me Vey: I have received the petition of Lisa Glahn, Esq., of Mintz Levin appealing the response of the Massachusetts Department of Transportation's Registry of Motor Vehicles (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on or about AprilS, 2016 Benjamin R. Sigel, Esq., of Mintz Levin submitted a detailed request for records related to MHQ, Inc., Charles Rabakoff, and/or Natick Auto Sales, Inc., itemized 1 thru 13. In a response dated July 15,2016, the Department provided records. The Department withheld other records citing the common law attorney client privilege. The Department indicated it is unaware if any further records exist. Thereupon, Attorney Glahn petitioned this office, challenging the Department's claim of attorney client privilege and whether the Department had conducted a thorough search of its records. 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 of the 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, § 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. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

William E. MeV ey SPR16/872 Page 2 October 21, 2016 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 of the responsive record. Attorney-client privilege 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 Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93, (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Accordingly, the Department must provide a privilege index for responsive records it intends to withhold under the attorney-client privilege. See Suffolk, 449 Mass. at 460. Exemptions The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § IO(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the

William E. McVey SPR16/872 Page 3 October 21, 2016 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by Department did not contain the specificity required in a denial of access to public records. Accordingly, Department is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. A records custodian must not only cite an exemption, but must also specifically explain the applicability of the exemption to the requested records. Vague response In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). It is unclear from the Department's response whether it actually searched its records to determine whether responsive exist exists or ever existed. Accordingly, the Department is hereby ordered to do a full and thorough search of its records, identify and provide all records responsive to each request. If the Department maintains that the responsive records no longer exist, the Department is further ordered to explain in writing its justification under the Public Records Law and the appropriate records retention schedule. Order For the reasons discussed above, the Department is hereby ordered to provide Attorney Glahn with a revised written response to this request for records. This response, prepared in compliance with this order, the Public Records Law and its Regulations, must include a statement about what was provided and what records remain to be provided, if any. 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. Attorney lahn may appeal the substantive nature of the Department's response within ninety (90) d 50 C.M.R. 32.08(2). cc: Ms. Lisa Glahn, Esq.