Eoin Higgins v. Massachusetts Department of Agricultural Resources (SPR 20170750)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 14, 2017 SPR171750 Carol Szocik Information Officer Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Szocik: I have received the petition of Eoin Higgins of The Berkshire Eagle appealing the response of the Department of Agricultural Resources (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32~08(1). Specifically, Mr. Higgins requested a copy of all documents including all communications, internal memoranda and policies from the Department from January 1, 2015-January 1, 2017 relating to real property located at 342 North Plain Road in Great Barrington. The Department provided Mr. Higgins with records, redacting email addresses, telephone numbers, federal identification numbers and financial information. The Department claimed in its April 21st letter that it is self-explanatory as to where these redactions were made. It is unclear which exemption in the Public Records Law allows the Department to withhold email addresses, telephone numbers, federal identification number and financial information. The Department also redacted or withheld communications in their entirety pursuant to the common law attorney-client privilege. Your April 21st letter further states that redactions are, "to/from MDAR and EEA staff and legal counsel for the purpose of giving legal advice." Finally, the response also provided Mr. Higgins with the content ofthe subject lines, but not the general subject matter of the emails themselves. Mr. Higgins appealed the redactions of all the subject matter content of the communications and the redaction of some of the eniail communication in their entirety. 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 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

Carol Szocik SPR17/750 Page 2 June 14, 2017 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(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. 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 the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Common law attorney-client privilege The Department has claimed that the records provided have been redacted and that some records were withheld in their entirety under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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 v. 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 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court

Carol Szocik SPR17/750 Page 3 June 14, 2017 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 client's search for legal advice from the attorney in 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 ofElec. 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 "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names ofthe 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). While the Department stated that the individuals who are the authors and recipients of the emails are Department staff and legal counsel, the Department has not sufficiently provided the names of the author and recipient, the date, the substance of each such record, the grounds upon which the attorney-client privilege is being claimed, and whether the attorney client privilege has been waived. It seems that additional information could be provided to fully explain how the privilege applies to the records responsive to Mr. Higgins request. Therefore, I find that the Department has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold content and records in their entirety. Email addresses/telephone numbers/federal identification numbers/financial information Your April 21st response concerning the redactions and/ or withholding of records containing email addresses, telephone numbers, federal identification numbers and financial information reveals that the Department did not specifically claim any exemption in the Public Records Law or explain how any exemption applies to withhold the records or portions of the records. Here, too, the Department has not met its statutory and regulatory burden of specificity, by failing to claim an exemption and by not explaining how an exemption allows the Department to withhold portions of records or records in their entirety.

Carol Szocik SPR17/750 Page 4 June 14, 2017 It is my understanding that the Department contacted this office and indicated that another response will be provided to Mr. Higgins concerning all the records withheld in their entirety and the information redacted from the records. Conclusion Accordingly, whereas the Department will provide Mr. Higgins with another response, I will consider this appeal closed if the response is provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Higgins may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins

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