Susan L. Bach v. Attorney General's Office (SPR 20171203)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2017 SPR17/1203 Lorraine A.G. Tarrow, Esq. Office of the Attorney General General Counsel's Office One Ashburton Place, 20th Floor Boston, MA 021 08 Dear Attorney Tarrow: I have received the petition of Susan Bach appealing the response of the Office ofthe Attorney General (AGO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Bach requested records relating to a series of legal cases between the Office and other identified parties. See SPR17 /1179 Determination of the Supervisor of Records (September 7, 2017). The AGO provided a response dated August 29, 2017 in which it explains it previously provided certain records, withheld others under Exemption (d) of the Public Records Law and the attorney-client privilege, and provided a fee estimate for the provision of other records. Ms. Bach appealed and requests this office order the AGO to produce "a detailed privilege log of all the documents they are withholding." Ms. Bach also indicates that the AGO "must produce an index of records before a fee is paid." 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, § lO(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 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

Lorraine A.G. Tarrow, Esq. SPR17/1203 Page2 September 14, 2017 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Attorney-client privilege In its August 29th response, the AGO explained it "withheld from disclosure as protected from attorney-client communications, those intra-agency emails in which Assistant Attorneys General (AAsG) have sought, and been given, legal advice from other AAsG who have more expertise in the issues at hand." 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 ofthe 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, § 10A(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

Lorraine A.G. Tarrow, Esq. SPR17/1203 Page 3 September 14, 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, § 10A(a). The AGO 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 response with further information relating to the description of the record, authors and recipients, and the grounds upon which the attorney-client privilege is being claimed as contemplated in G. L. c. 66, § lOA(a). It is preferable to send an electronic copy ofthe response as soon as practicable to this office at pre@sec.state.ma.us. The AGO notes that some records are protected by both the attorney-client privilege and Exemption (d). I find it is necessary to first determine whether these records are subject to attorney-client privilege prior to analyzing the AGO's Exemption (d) claim. I understand a Public Records Division staff attorney contacted you about this matter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan Bach