Colman Herman v. Office of the Auditor of the Commonwealth (SPR 20161081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 9, 2016 SPR16/1081 Timothy V. Dooling, Esq. Deputy Auditor and General Counsel Office of the Auditor of the Commonwealth One Ashburton Place, Room 1819 Boston, MA 021 08 Dear Deputy Auditor Dooling: I have received the petition of Colman Herman appealing the response ofthe Office of the Auditor of the Commonwealth (Office) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman sought copies of records associated with the Auditor. Previous appeal This request was the subject of a previous appeal. SPR16/993 Determination of the Supervisor of Records (November 3, 2016). I closed SPR16/993 with the proviso that the Office provide Mr. Herman with a revised response addressing his concerns regarding the applicability of the attorney-client privilege. The Office responded to the order in a letter to Mr. Herman dated November 8, 2016. Mr. Herman informed this office he seeks further action with respect to this matter. This appeal (SPR16/1 081) was opened as a result. Current appeal In a response dated October 24, 2016, the Office provided certain of the responsive records and withheld others in their entirety pursuant to a claim of attorney client privilege. In the November 8 letter you explain "[t]he privileged attorney-client communication represent otherwise potentially responsive confidential communications between myself and Auditor Bump from May 2016 undertaken for purposes of obtaining legal advice and assistance." You further explain "[t]hese limited communications were made in confidence, and at no time has Auditor Bump waived this privilege." 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

Timothy V. Dooling, Esq. SPR16/1081 Page 2 December 9, 2016 Mr. Herman appealed on the basis that the Office did not initially provide a privilege index as described in Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 460 (2007). Subsequent to the opening of this appeal, the Office provided a supplemental response to Mr. Herman dated December 7, 2016 that includes <t privilege index. Accordingly, I will consider this appeal closed. Mr. Herman may appeal the substantive nature of the Office's response within ninety (90) days. See 950 C.M.R. 32.08(2). cc: Colman Herman