Joshua Miller v. Executive Office for Administration & Finance (SPR 20170614)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 18, 2017 SPR17/614 Robert Ross, Esq. General Counsel Executive Office for Administration & Finance Massachusetts State House, Room 373 Boston, MA 0213 3 Dear Attorney Ross: I have received the petition of Joshua Miller of The Boston Globe appealing the response of the Executive Office for Administration & Finance (A&F or ANF) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Miller requested emails sent to or from identified individuals within a certain time period containing the following words: "marijuana, cannabis, pot, weed, and/or the abbreviation MJ." In a response dated May 2, 2017, A&F provided certain records, and withheld or redacted others und.er Exemption ( d) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(d). 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, § lOA(d); 950 C.M.R. 32.03(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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Robert Ross, Esq. SPRl 7/614 Page 2 May 18, 2017 Attorney-client privilege In his appeal petition, Mr. Miller indicates he doubts "that all of the communications between Mr. Ross and ANF employees that were redacted were, as Suffolk opines, 'undertaken for the purpose of obtaining legal advice or assistance.'" Mr. Miller requests that this office "examine the redacted records in camera to see if the redactions meet the legal standard." 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); 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). Disclosing attorney client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). In camera review ofr ecords withheld under a claim of attorney-client privilege G. L. c. 66 § IOA(a) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been withheld on the basis of a claim of the attorney-client privilege, the supervisor of records shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. Upon review of the records provided to Mr. Miller, the names of the author, recipients and dates of the records are evident. A&F may elect to provide this office with unredacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide this office a response with further information relating to the substance of the redacted information and the grounds upon which the attorney-client privilege is being claimed as contemplated in G. L. c. 66, § IOA(a). I understand a Public Records Division staff attorney

Robert Ross, Esq. SPRl 7/614 Page 3 May 18, 2017 contacted you about this matter. It is preferable to send an electronic copy of this response without delay to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Miller