Emory Snell, Jr. v. Department of Correction - MCI Concord (SPR 20170741)

The Commonwealth of Massachusetts Wilham Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S.’ Murray Supervisor of Records

June 13, 2017 SPR17/741

Janine Roth

Records Manager

Department of Correction - MCI Concord 965 Elm Street, P.O. Box 9106 -

Concord, MA 01742

Dear Ms. Roth:

I have received the petition of Emory G. Snell, Jr. appealing the response of the Department of Correction - MCI Concord (Department) to a request for public records. G. L: c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Snell requested a copy of:

1. All records, emails, communications or other information in the possession of any employee, agent or servant of the Department at MCI-Concord concerning Emory G. Snell, Jr. and a March 28, 2017 bar to state-paid indigent legal mail;

2. A record showing the identity of the person that you spoke with at DOC Legal, and any records, information, emails or any. other communications that arose from the communication;

3. What Massachusetts indigency statute, eg., G. L. 261, § 27A-6, you or DOC Legal

advised you, referenced to support barring Emory G. Snell, Jr. from exercising protected First Amendment petitioning of the government by state paid indigent legal mail;

4. —- 12. Records concerning asbestos and asbestos abatement at MCI-Concord, in particular the East Building at MCI-Concord.

Requirements for filing an appeal

Mr. Snell did not provide the Records Access Officer with a copy of his petition. In petitioning the Supervisor of Records (Supervisor), the requester must provide a copy of such petition to the records access officer associated with such petition. 950 C.M.R. 32.08(1)(h). A copy of the appeal file was provided to the Department by the Public Records Division.

The Department provided Mr. Snell with all records in its custody regarding Requests 4 through 12 of his April 14" public records request. The Department’s April 28" response informed Mr. Snell that records responsive to his Request Number 1 are being denied under the

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

Janine Roth SPR17/741 Page 2 June 13, 2017

Criminal Offender Records Information (CORI) Act (Act) as Mr. Snell’s own CORI may not be obtained through a public records request. Mr. Snell has a unique right of access to his own CORI records through G. L. c. 6, § 175.

The Department has denied Mr. Snell’s Request Numbers 2 and 3 under the common law

attorney-client privilege. Mr. Snell is appealing the denial of records responsive to Request Numbers 1-3.

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, § 10A(d); 950 C_MLR. 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).

_ Itis 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(b)(Giv); 950 C.M.LR. 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).

Request for Criminal Offender Record Information; Status of the requester

Mr. Snell is advised that CORI pertaining to an identified person is restricted by the Act. See G. L. c. 6, § 167. Therefore, while Mr. Snell has a unique right of access to his own CORI, the Public Records Law is not the proper avenue to gain access to one’s own CORI. There is a

provision in the Act which grants an individual the right to inspect his/her own CORI. See G. L. c. 6, § 175.

Furthermore, the public records appeals process shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Whereas Mr. Snell has a unique right of access to his own CORI, I decline to continue any further review of his request for his own CORI.

Mr. Snell is advised that his interest in and status as the subject of some of the records offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § 10(a) (public records are to be provided to “any person”); see also Bougas vy. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Mr.

Snell’s status will play no role in a determination as to whether the records should be disclosed to the public.

Janine Roth : SPR17/741 - Page 3 June 13, 2017

Common law attorney-client privilege

The Department has claimed that Mr. Snell’s Request Numbers 2 and 3 are protected under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). In your April 28" letter, you stated that the Public Records Law does not include disclosure of attorney-client communications.

There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard vy. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc.. v. Comm’r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 (1997).

The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993),

The Court affirmed the “general rule” that when matters are “communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony.” Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (183 1). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney- client relationship exists, but that, with respect to the privileged materials:

(1) the communications were received from a client during the course of the

chent's-search-forlegat-advice front the attormey it his or her Capacity as Such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.

Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997); 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).

Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor shall not inspect the record but "shail 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." G. L. c. 66, § 10A(a) (emphasis added).

Janine Roth | — SPRI7/741 Page 4. June 13, 2017

It seems that additional information could be provided to indicate how the privilege applies to any records responsive to Mr. Snell’s Request Numbers 2 and 3. Therefore, I find that the Department has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the records. It is my understanding that the Department’s Legal Division will provide a supplemental response.

Conclusion

Accordingly, whereas the Department has indicated that it will provide Mr. Snell with a further response to his Request Numbers 2 and 3 and the application of the attorney-client privilege to the records, I will consider the appeal closed with the proviso that the response is provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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.

Mr. Snell may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1).

Sincerely,

Rebecca S. Murray Supervisor of Records

_ cc: Nancy White, Esq., DOC General Counsel Emory G. Snell, Esq.