Hugh J. Gorman III, Esq. v. Department of Environmental Protection - Bureau of Waste Site Cleanup (SPR 20170888)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 13, 2017 SPIU7/888 Kathleen Delaplain, Esq. Senior Counsel Office of General Counsel Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received the petition of Hugh J. Gorman, III., Esq. appealing the response of the Department of Environmental Protection (DEP) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Gorman requested records relating to potential conflicts of interest pertaining to an identified investigation. In a response dated June 8, 2017, DEP explained that it had five responsive documents available for Attorney Gorman to review. DEP withheld six remaining responsive records pursuant to a claim of common law attorney-client privilege. 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, § IOA(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. 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

Kathleen Delaplain, Esq. SPR17/888 Page2 July 13, 2017 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. Attorney-client privilege In his appeal petition, Attorney Gorman requested that the Supervisor of Records review the withheld records in camera in order to determine if the attorney client privilege applies, and if not, order DEP to provide copies ofthe records to him. 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 § lOA(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. G. L. c. 66 § lOA(a). As noted above, 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

Kathleen Delaplain, Esq. SPR17/888 Page 3 July 13, 2017 Supervisor of Records "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." G. L. c. 66, § lOA(a). Upon review ofDEP's June gth response, the names of the author, recipients and dates of the records are evident. DEP may elect to provide this office with umedacted copies of the responsive records for in camera review. However, if it does not electto 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, § 1O A( a). I understand a Public Records Division staff attorney contacted your office 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, /JwA~ Rebecca S. Murray Supervisor of Records cc: Hugh J. Gorman III., Esq. Michael Dingle, Esq.