Glen Ayers v. Massachusetts Department of Environmental Protection (SPR 20171770)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 12, 2018 SPR17/1770 Julianne E. Ture Department of Environmental Protection Bureau of Water Resources Charlestown Naval Yard 100 First Avenue, Building 39 Boston, MA 02129 Dear Ms. Ture: I have received the petition of Glen A. Ayers appealing the response of the Department of Environmental Protection-Bureau of Water Resources (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ayers requested a copy of, or an online website link to: 1. The Department's comments to the ENRA Committee concerning "An Act Ensuring Safe Drinking Water at schools and early childhood programs (Senate Bill No. 456); 2. The Department's comments, if any, regarding House Bill No. 2130, "An Act Relative to Public Water Supply Records;" and 3. The Department's comments, if any, regarding House Bill No. 2422, "An Act Relative to Local Oversite of Non-Municipal Public Water Supply Systems." Previous appeal The responsive records were the subject of a previous appeal. See SPRl 7 /1644 Determination of the Supervisor of Records (Supervisor) (December 8, 2017). The Department's November 9th response stated that the House and Senate bill comments held by the Department are still in process, therefore the Department withheld the bill comments in their entirety pursuant to Exemption ( d). In my December 8th determination, I found that the Department did not meet its burden of specificity in claiming Exemption ( d), and I ordered the Department to provide a supplemental response to support its exemption claim and to provide any non-exempt, segregable portion of a record. On December 261 h, the Department provided twenty-five pages of redacted email communications regarding draft bill comments pertaining to House Bill No. 2130 and Senate Bill 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

Julianne E. Ture SPRl 7/1770 Page 2 January 10, 2018 No. 456. The Department also provided a December 22nd supplemental response from Michael W. Dingle, Esq. in the Office of the General Counsel regarding the redacted records pursuant to Exemption ( d), and the withheld communications under the common law attorney-client privilege. As a result ofreceipt of the Department's December 22nd response and the redacted email communications, Mr. Ayer petitioned this office, stating that the Department has overly redacted the records and he believes that the Department has incorrectly withheld communications under the common law attorney client privilege. Therefore, the current appeal, SPRl 7 /1770, was opened. 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 establishing the applicability of an exemption). The Department's December 22nd response The Department's response to Mr. Ayers was accompanied by twenty-five pages of redacted communications pertaining to bill comments being prepared by Department employees that have not been approved by the Department's Commissioner (Commissioner), nor submitted to the Legislature pertaining to House Bill No. 2130 and Senate Bill No. 456. The Department indicates that it redacted these communication under Exemption ( d) because the communications are only draft comments, which are both legal and policy recommendations regarding proposed legislation. The Department's response also informed Mr. Ayers that it is withholding content from two email communications, along with twelve documents attached to those emails, under the common law attorney-client privilege. It further indicated that these emails and attachments were sent and received between Department Legal Counsel and Department employees under the common law attorney-client privilege. Exemption (d ) Exemption (d) applies to:

Julianne E. Ture SPRl 7/1770 Page 3 January 10, 2018 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'v of the Exec. Office of Human Servs., 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). The Department's response indicates that the comments by Department employees regarding both the Senate and House bills are still in process because the draft comments and documents have not been reviewed and approved by the Commissioner; nor, has the Department provided any comments to the Legislature's committees for review. Therefore, the Department believes that any draft comments and draft documents may be protected from disclosure until approved by the Department for submission to the Legislature under Exemption ( d). Attorney Dingle's response on behalf of the Department posits that the records should not be disclosed in their entirety because Exemption ( d) is intended to afford a measure of privacy to decision-makers to engage in general discussions with their advisors. Attorney Dingle states on Page 2 of his December 22nd response, "[t]he draft comments prepared by the assigned Department employees do not contain factual studies or reports, and are 'pre-decisional' materials which were written as part of a decision-making process that concerns the Department's policies and programs pertaining to water supply. They are subject to change and may be refined throughout the deliberative process until the Commissioner renders a final agency decision." Furthermore, in the Department's judgment, the disclosure of the Department's decision making process before the Commissioner has approved or adopted Departmental employee recommendations would serve to discourage candid discussion on substantive policy matters pending within the agency and thereby undermine the Commissioner's responsibility for final decision-making on Departmental programs and policies and the ability of the Department's employees to perform their function of advising the Commissioner on matters within their expertise. The Department concludes that, "[g]iven that the legislative process pertaining to these bills is on-going, and the Commissioner has not yet reached any substantive conclusions, there is substantial risk that the premature public release of the Department's employees' preliminary views could distort the Department's eventual adoption of final policy positions."

Julianne E. Ture SPRl 7/1770 Page4 January 10, 2018 Common law attorney-client privilege With regard to email numbers 7 and 9 as listed on the Department's index, the Department indicates that those emails and the twelve email attachments are "confidential communications between Legal Counsel and Department employees that were sent to provide legal advice regarding comments on the legislation, and are protected by attorney-client privilege. The Department withheld those communications and attachments in their entirety. 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 the purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc. v. Comm'r of the 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 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). In order to properly claim the common law attorney-client privilege, not only must the records custodian comply with the three-step test in Suffolk, but must also comply with the requirements in the Public Records Law to withhold records based on the claim of attorney-client privilege. The Public Records Law requires that in assessing whether a records custodian has

Julianne E. Ture SPRl 7/1770 Page 5 January 10, 2018 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 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). While the Department provided the names of the individuals who either sent or received the email communications, other than the Department stating that Karen Crocker and Andy Cohen are attorneys with the Department, it is not known whether all the records contained legal advice from the attorneys to their clients. The Department's December response explained that the communications were sent and received between Legal Counsel and Department employees, and the Department provided the dates of the emails. However, the Department has not provided the authors and recipients of the withheld attachments from email numbers 7 and 9, nor has it provided details of the subject matter of those attachments. The Department has merely provided generalizations concerning the withheld emails or email contents, but no details of the subject matter of the attachments to those emails. I find that the Department has not met its burden under the three-step test in Suffolk and the requirements for claiming attorney-client attorney under the Public Records Law. The Department must provide Mr. Ayer with more detailed information concerning the authors and recipients, the dates of the attachments, the substance of the withheld attachments, and the grounds upon which the attorney-client privilege is being claimed. I note that the fact that an attorney is copied on an email is no evidence that the communication is one in which the privilege may be claimed. Specificity in responding The Department has not met its burden of demonstrating that all the records may be withheld pursuant to Exemption (d) and under the attorney-client privilege. See G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (statutory exemptions are not blanket in nature). In camera review In order to facilitate a determination as to the applicability of the Exemption (d ) claim made by the Department to withhold the content in the emails provided to Mr. Ayer and to the documents withheld in their entirety, the Department should provide this office with un-redacted copies of the responsive emails and attachments for an in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C:M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the

Julianne E. Ture SPRl 7/1770 Page 6 January 10, 2018 judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. In the alternative, the Department may provide this office with a further explanation of its position regarding the applicability of Exemption ( d) to the responsive records. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the Department is hereby ordered to provide a response in accordance with the Public Records Law, its Regulations and this order within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Glen A. Ayers