Eoin Higgins v. Massachusetts Department of Agricultural Resources (SPR 20170956)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 26, 2017 SPR17/ 955; SPR17/ 956 Carol Szocik Records Access Officer Massachusetts 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 "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 record was the subject of prior appeals. See SPR17/750 Determination of the Supervisor of Records (June 14, 2017); SPR17/832 Determination of the Supervisor of Records (June 28, 2017). Following the June 28th Determination, the Department provided a supplemental response to Mr. Higgins on July 12, 2017. Unsatisfied with the Department's response with respect to the claim of attorney-client privilege, Mr. Higgins petitioned this Office. 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, § 1O (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 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 SPR17/955; SPR17/956 Page2 July 26, 2017 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's July Jih response In the Department's July 1ih response, the Department indicates that "regarding the records sent to you were incomplete and only addressed a portion of the redacted documents, ... [i]n MDAR's letter to you dated June 19, 2017, a privilege log was provided to you in accordance to the regulations which listed the dates, to/from/cc, subject matter and type of redaction taken on documents under attorney-client privilege." The Department further indicates that "[t]here were no redactions in the privilege log that was sent to you, as it is a list of the records that were redacted which were sent to you on April 14, 2017 via 'We Transfer."' No duty to create records In its July 1ih response, the Department claims that "[f]inally, as for the requested clarification, MDAR has provided all of the records in its possession regarding your request." Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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, § 10 ( a)(ii). Common law attorney-client privilege The Department has claimed that information has been withheld 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 to public attorneys. 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 ofproving 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 client's search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and

Carol Szocik SPR17/955; SPR17/956 Page 3 July 26, 2017 (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter ofthe 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). In a related response to a previous appeal, SPR17/750, Determination of Supervisor of Records (June 14, 2017), the Department in its July 1ih response indicated that it provided a detailed description of the record in the privilege log it provided Mr. Higgins on June 19, 2017, by "including the date, to/from/cc, and subject matter that was discussed in the redacted emails, and the type of exemption." Also, you further indicated that "[a]ll of the records that appear under attorney-client privilege are communications between lawyer (MDAR/EEA Counsels) and clients (MDAR staff) for the purpose of obtaining legal advice, were communications made in confidence, and the privilege has not been waived." The Department provided a privilege log to Mr. Higgins on June 19, 2017, and claims that the redacted communications were made in confidence by a client, MDAR, for the purpose of obtaining legal advice from its EEA Counsels, and the privilege has not been waived. However, it is unclear whether the privileged content could be segregated. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In camera review ofr ecords withheld under a claim of attorney-client privilege G. L. c. 66 § 10A(a) discusses the ability ofthe Supervisor ofRecords 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. The Department 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

Carol Szocik SPR17/955; SPR17/956 Page 4 July 26, 2017 response with further information relating to the redactability of these records. I understand a Public Records Division attorney contacted you to discuss this matter. It is preferable to send an electronic copy of the response without delay to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Eoin Higgins