David Spindler v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20171014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 2, 201 7 SPR17/1014 Jamie Tosches, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Tosches: I have received the petition of David N. Spindler, Chief Operating Officer at DCM Logic, appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Spindler requested the Department of Energy Resources' (DOER) written response(s) filed with EOEEA concerning DCM Logic's comments to the draft APS regulations and guidelines. In ih a July letter, EOEEA informed Mr. Spindler that it has one record that is responsive to the request; however, EOEEA is withholding the record pursuant to Exemption (d) of the Public Records Law and the common law attorney-client privilege. Mr. Spindler appealed. Status of the requester In his petition for an appeal, Mr. Spindler states that the record is necessary to learn about any concerns that DOER might have had about his company's previous comments on the proposed regulations. Otherwise, without knowing DOER's response, Mr. Spindler contends it would be very difficult for DCM Logic to submit additional comments to the draft regulations that were republished for further comment. Mr. Spindler is advised that his status as a concerned party who submitted comments to the draft regulations offers him no greater right of access than any other person or entity in the public realm. See G. L. c. 66, § lO(a) (public records are to be provided to "any person"); see also Bougas v. 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 ofthe requester. Therefore, Mr. Spindler's status and that ofDCM Logic will play no role in a determination as to whether the records should be disclosed to the 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

Jaime Tosches, Esq. SPR17/1014 Page 2 August 2, 2017 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, § 1O A( 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 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. Exemption (d) and the common law attorney-client privilege ih Your July response states that one (1) record was located, but that the deliberative process exemption and the common law attorney-client privilege allow for the withholding of the record. Therefore, you informed Mr. Spindler that EOEEA is unable to provide the responsive record. Exemption (d) Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7 (26)(d ). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are subject to disclosure.)

Jaime Tosches, Esq. SPR17/1014 Page 3 August 2, 2017 ih Your July letter does not provide the necessary specificity on how and why Exemption (d) applies to withhold the responsive record in its entirety. EOEEA merely cited the exemption without any detail to support the claim that Exemption (d) allows EOEEA to withhold the record. EOEEA has not offered any support that the public release of the record, even in redacted format, could taint its deliberative process regarding the regulatory process. Therefore, I find that EOEEA has not met its burden of specificity in claiming Exemption (d) of the Public Records Law to withhold the record. Common law attorney-client privilege ih In its July letter, EOEEA simply states, "the attorney-client privilege also applies to the responsive records. Thus, we are unable to provide the responsive record." 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 ofMassachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r ofthe 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., v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2008). 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 Electric 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 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 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).

Jaime Tosches, Esq. SPR17/1014 Page4 August 2, 2017 EOEEA did not provide any detail or specificity on how the record is protected by the common law attorney-client privilege. EOEEA must first apply the three-step test in Suffolk to prove that the record falls under the protection of the attorney-client privilege and cannot be disclosed to the public. Furthermore, 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 of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description ofthe 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). I find that the EOEEA has not met its burden of demonstrating that the responsive record may be withheld from public disclosure in its entirety under the common law attorney-client privilege. The EOEEA has neither provided a detailed written response following the requirements set forth in the three-part test in Suffolk; nor, has it provided a detailed index in accordance with G. L. c. 66, § 10A(a). The EOEEA has also not met its burden of explaining why the requested record cannot be redacted under the exemptions in the Public Records Law, and the balance of the record provided to Mr. Spindler. See G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (statutory exemptions are not blanket in nature). Order Accordingly, the EOEEA is hereby ordered to provide Mr. Spindler with a detailed response to the request, its Exemption (d) claim, and a privilege log or index to support its common law attorney-client privilege claim, 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. Spindler 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: David N. Spindler