John L. Fink, Esq. v. Department of Public Safety (SPR 20160905)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 28, 2016 SPR16/905 Stephen Carley, Esq. Department of Public Safety One Ashb urton Place, Room 13 0 1 Boston, MA 021 08-1618 Dear Attorney Carley: I have received the petition of John L. Fink, Esq. appealing the response of the Department of Public Safety (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Fink requested a copy of"any and all emails sent or received to the email address: adelle.reynolds@massmail.state.ma.us, or any other email used by Adelle Reynolds in her official capacity." Previous appeal This request was the subject of a previous appeal. See SPR16/760 Determination of the Supervisor ofRecords (October 5, 2016). I closed SPR16/760 with the proviso that Department respond to Attorney Fink's request without delay. The Department responded on that same day and Attorney Fink informed this office he seeks further action with respect to this matter. This appeal (SPR16/905) was opened as a result. 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). 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 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

Stephen Carley, Esq. SPR16/905 Page2 October 28, 2016 cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer 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 information. The Department's October 5 response The Department provided certain responsive records in its October 5 response. You explained information was redacted under Exemption (c) of the Public Records Law and "seven (7) whole documents" were withheld under the attorney-client privilege. G. L. c. 4, § 7(26)(c). You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) to support the attorney-client privilege claim. Based on his appeal petition, it appears Attorney Fink is only appealing the withholding of records under the attorney-client privilege. 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). The Department has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the Department did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. In addition, the Department has not identified the specific records that it believes fall into the attorney client privilege. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460.

Stephen Carley, Esq. SPR16/905 Page 3 October 28, 2016 I understand an attorney on my staff contacted you about this matter and you indicated the Department will provide a supplemental response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Attorney Fink with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. A copy of any such response must be provided to this office. It is preferable to send an electro ·c copy of this response to this office at pre@sec.state.ma.us. cc: John L. Fink, Esq. .,