John L. Fink, Esq. v. Executive Office of Public Safety & Security - Department of Public Safety (SPR 20161056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 9, 2016 SPR16/1056 Stephen Carley, Esq. Department of Public Safety One Ashburton Place, Room 1301 Boston, MA 02108-1618 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 emails to and from the email address adelle.reynolds@massmail.state.ma.us within a certain time period. Previous appeal This request was the subject of previous appeals. See SPR16/760 Determination ofthe Supervisor of Records (October 5, 2016); SPR16/905 Determination ofthe Supervisor of Records (October 28, 20 16). I closed SPR16/905 with the proviso that the Department provide Attorney Fink with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations) without delay. The Department responded in a letter dated November 10,2016 and Attorney Fink informed this office he seeks further action with respect to this matter. This appeal (SPR16/1 056) 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. SPR16/1056 Page 2 December 9, 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, § 1O (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 ($1 0. 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 November 10 response The Department initially provided certain responsive records in a response dated October 5, 2016. You explained information was redacted under Exemption (c) ofthe Public Records Law and "seven (7) whole documents" were withheld under the attorney-client privilege. G. L. c. 4, § 7(26)(c). In the Department's November 10 letter you explain the Department maintains its position that seven documents, 'comprising of 18 total pages, may be withheld under the attorney client privilege. You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) and provide a privilege index to support the attorney-client privilege claim. Although Attorney Fink requests this office review these records in camera, I decline to do so at this time. See 950 C.M.R. 32.08(6). 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).

Stephen Carley, Esq. SPR16/1056 Page 3 December 9, 2016 The Department's privilege log contains the following information for each of the withheld documents: withheld page, date, sender, recipient (primary), recipient (secondary), confidential (yes or no), purpose, waiver (yes or no), basis for withholding, and authority. Although the log is detailed, it is unclear how certain withheld documents, particularly those that list "Agency employee" as the sender, "Agency employee" as the primary recipient, and "Agency counsel" as the secondary recipient, were made within the context of an attorney client relationship, thereby falling within the attorney-client privilege. The same issue arises for documents that list "Agency hearing officer" as the sender and "Agency employee" as both the primary and secondary recipient. See Suffolk, 449 Mass. at 450 n.9. Further, the index does not list the names of the senders or recipients. I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, the Department is hereby ordered to provide Attorney Fink with a response to the request, provided 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 of 1ce. It is preferable to send an electronic copy of this response to this office at ,~;e.cr;.o·= =+l'~-'=~="""-"= Supervisor of Records cc: John L. Fink, Esq.