Phil Shannon v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20160913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 26, 2016 SPR16/913 John Englander, Esq. General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza Boston, MA 02116 Dear Attorney Englander: I have received the petition of Beryl Lipton, on behalf of requester Phillip Shannon appealing the response of Massachusetts Bay Transportation Authority (MBTA) to an October 23, 2014 request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shannon, in reference to the statement of an MBTA spokesperson, sought copies "all documents" associated with an MBTA review of China CNR Corporation Limited. In a September 2, 2016 email to MBTA Attorney Susan Cobb, Beryl Lipton requested an update on this request on behalf of Mr. Shannon. Previous appeal This request was the subject of a previous appeal. See SPR15/739 Determination of the Supervisor of Records (December 21, 2015). In my December 21 determination I found the MBTA had not overcome the presumption that the requested records are public. I ordered the MBTA to provide Mr. Shannon with the requested records or a written explanation of how a particular exemption applies to each record. Ms. Lipton inquired about the status of this matter and, in a response dated October 7, 2016 Mark Michalowski, Partner at Holland & Knight indicated the MBTA is withholding "a Legal Memorandum with exhibits" under the Exemption ( d) of the Public Records Law and the common law attorney client privilege. G. L. c. 4, § 7(26)(d). Ms. Lipton appealed this response. It is not clear from this response whether this "Legal Memorandum with exhibits" is the sole record responsive to the request. Ms. Lipton appealed. 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

John Englander, Esq. SPR16/913 Page2 October 26, 2016 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, § lO(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, § lO(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, § lO(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. 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 MBTA 's October 7 response In the October 7 response Attorney Michalowski, on behalf of the MBTA, indicates "the MBTA invokes the attorney client privilege and work product protection (through [E]xemption (d) ofM.G.L. c. 4, § 7(twenty-sixth) and is withholding from production a Legal Memorandum with exhibits from Holland & Knight, LLP to the MBTA's General Counsel dated October 20, 2014 pertaining to due diligence conducted by and through counsel on the successful bidder prior to Board selection." You cite DaRosa v. City of New Bedford, 471Mass,446 (2015) and Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) to support this position. Again, it is unclear whether this is the sole responsive record. As indicated below, the MBTA has failed to meet its legal obligations under statute, regulation and case law to support such withholding.

John Englander, Esq. SPR16/913 Page 3 October 26, 2016 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, 449 Mass. at 444. 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). 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. The MBTA has failed to prove the existence of an attorney-client relationship under these circumstances. Furthermore, the MBTA has not explained how the records are communications received during the course of the client's search for legal advice, whether they were made in confidence, or whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. Finally, the MBTA failed to provide a privilege index. See id. at 460. Accordingly, I find the MBTA has failed to satisfy its obligations to establish a justification to withhold the "Legal Memorandum with exhibits" pursuant to the common law attorney-client privilege. 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)

John Englander, Esq. SPR16/913 Page4 October 26, 2016 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. Sec'y of the Exec. Office of Human Servs., 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 Envtl. 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 of New 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. The court 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 "Legal Memorandum with exhibits" was prepared in anticipation of litigation or trial. Further, the MBTA has not shown how any factual non deliberative information may be withheld. Accordingly, I find the MBTA has failed to satisfy its obligations to establish a justification to withhold the "Legal Memorandum with exhibits" under DaRosa and Exemption (d) of the Public Records Law. Records in existence In addition, the October 2014 request was for "all documents" from the MBTA's review of the matter in question. The MBTA failed to indicate whether any other records exist that are responsive to this request. The request emanates from news reports regarding the MBTA review. See http ://finance. yahoo. com/news/s tate-awards-subway-car-contract-2134 34 728 .html (accessed October 26, 2016). The MBTA must confirm whether it possesses any other responsive records. See G. L. c. 4, § 7(26) (the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request). I understand an attorney on my staff contacted you about this appeal. Accordingly, I find the MBTA has failed to state whether its October 7, 2016 response includes all records responsive to Mr. Shannon's October 23, 2014 request. Order I find the MBTA has failed to comply with its obligations to respond to a request for public records. Accordingly, the MBTA is hereby ordered to provide Mr. Shannon and Ms. Lipton with a response to the October 2014 request, prepared in a manner consistent with this

John Englander, Esq. SPR16/913 Page 5 October 26, 2016 order, the Public Records Law its Regulations and applicable case law. 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. cc: Ms. Beryl Lipton Mr. Phil Shannon