Todd Wallack v. Office of the District Attorney - Plymouth District (SPR 20180091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 5, 2018 SPR18/091 Keith Garland, Esq. Records Access Officer Office of the Plymouth District Attorney 32 Belmont Street, P.O. Box 1665 Brockton, MA 02303-1665 Dear Attorney Garland: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Office of the District Attorney-Plymouth District (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "a copy of Mintz Levin's invoices/billings to represent the Plymouth District Attorney's Office, District Attorney Cruz and two employees in federal litigation brought by a former employee, John Bradley." Mr. Wallack initially appealed on the basis that he did not receive a response to the request. Subsequent to the intervention by a staff member of the Public Records Division, I learned that the DAO responded to Mr. Wallack's request with a response dated January 12, 2018. You explained that the DAO initially sent the response to the wrong mailing address; however, you provided Mr. Wallack an electronic copy on January 23, 2018. The DAO's January 23'ct response denied access to responsive records under Exemptions (a), (c), and (d) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c)-(d). Mr. Wallack objects to this response. 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). 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

Keith Garland, Esq. SPR18/091 Page 2 February 5, 2018 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 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 DAO's January 121 h response In its January 12'h response the DAO indicates "[t]he legal invoices contain detailed descriptions of the legal services provided. The invoices reveal confidential information and communications, made for the purpose of obtaining legal advice, which therefore are protected by the attorney-client privilege and therefore exempt from public records. Suffolk Const. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 445-446 (2007); G.L. c. 66, § 1 0; & G.L. c. 4, § 7(26)(d)." You also indicate that "[t]he legal invoices also contain information privileged by protective orders, pursuant to Mass. R. Civ. P. 26(c). Any information subject to a protective order is exempt from public records. Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209,219-220 (2011); G.L. c. 66, § 10; & G.L. c. 4, § 7(26)(a)." Further, you assert that "[t]he invoices also contain information from exempt personnel files, the disclosure of which would constitute an unwarranted invasion of personal privacy. G.L. c. 66, § 10; G.L. c. 4, § 7(26)(c)." With respect to providing the segregable portions of records you note that "[r]edaction of the invoices is not possible because the privileged materials are so inextricably intertwined with any non-privileged material." Exemptions Despite the DAO's response, it is unclear how the exemptions referenced above apply to withhold responsive records. See G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ...." ); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). In particular, the DAO has not met its burden to withhold responsive records in their entirety. 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, § lO(a). Attorney-client privilege 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

Keith Garland, Esq. SPR18/091 Page 3 February 5, 2018 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 Com., 453 Mass. 293, 306 (2009). Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A. 3d 994, I 001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681, 691, 693 (2000). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at I 002. It is unclear how the responsive records could not be redacted in order to disclose certain information, such as general descriptions, hours billed, and dollar amounts, while still preserving any privileged information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In camera review ofr ecords withheld under a claim ofa ttorney-client privilege With respect to any information being withheld under the attorney-client privilege, it should be noted that 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 this 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

Keith Garland, Esq. SPR18/091 Page4 February 5, 2018 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). The DAO 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 substance of any information withheld under the attorney-client privilege and the grounds upon which the 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. Conclusion Accordingly, the DAO is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack