Eoin Higgins v. Massachusetts Department of Agricultural Resources (SPR 20170832)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of& cords June 28, 2017 SPR17/832 Carol Szocik Information Officer Massachusetts Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Szocik: I have received the petition ofEoin 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 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Higgins requested a copy of "any and all documents including any and all communications, internal memoranda, and policies from MDAR from January 1, 2015 to January 1, 2017, relating to the property at 342 North Plain Road, Great Barrington." Previous appeal The requested records were the subject of a prior appeal. See SPR17/ 750 Determination ofthe Supervisor of Records (June 14, 2017). Following the June 14th determination, the Department provided a supplemental response to Mr. Higgins on June 19, 2017 in which the Department provided redacted records responsive to his request. Mr. Higgins objects to this response indicating that the records are "incomplete and only addressed a portion of the redacted documents." Consequently, this appeal (SPR17 /832) was opened. The Department's June 19111 response On June 19, 2017, the Department provided Mr. Higgins with records responsive to his request. The Department provided him with a heavily redacted privilege log including the author, recipient(s), date, and subject matter of the communications. The Department claims that the records were redacted pursuant to the common law attorney-client privilege. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR17/832 Page 2 June 28, 2017 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). The Department states it has provided all communications in its possession relative to Mr. Higgins' request by attaching a privilege log of email communications and the exemption relied upon. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 lO(a)(ii). The request was for "any and all documents including any and all communications, internal memoranda, and policies from MDAR from January 1, 2015 to January 1, 2017." Therefore, the Department must clarify whether it possesses any additional responsive records or confirm that it has provided Mr. Higgins with all the records in its possessiOn. Common law attorney-client privilege Under the Public Records Law, 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. The Department has claimed that the records provided have been redacted under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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 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

Carol Szocik SPR17/832 Page 3 June 28, 2017 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). The Department has not sufficiently provided information to indicate how the privilege applies to all the responsive records in Mr. Higgins request or the grounds upon which the attorney-client privilege is being claimed. 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 a Public Records staff attorney contacted you about this appeal. Conclusion Accordingly, whereas the Department has indicated that it will provide Mr. Higgins with a supplemental response, I will consider this appeal closed if the Department provides the response in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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 response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Eoin Higgins