Brian Sweet v. Office of the Attorney General (SPR 20180136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12,2018 SPR181136 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Brian Sweet appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, 5 10A, see also 950 C.M.R. 32.08(1). Specifically, Mr. Sweet requested: "all emails between Michael Halpin and Robert Quinan from May 16,2013 to the present (September 20,2017, date of the request); to include only those records as they relate, describe, or make reference to Brian Sweet or his associated legal matters. Any of these records where Attorney Joseph Kittredge is a named recipient should be excluded." Previous appeal The requested emails were the subject of a previous appeal. See SPRl711639 Determination of the Supervisor of Records (Supervisor) (December 5,2017). 1 closed SPR1711639 when the AGO provided Mr. Sweet with a November 28,2017 response to the request. Unsatisfied with the AGO'S November 28'h response, Mr. Sweet petitioned the Supervisor and the current appeal 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, 5 10A(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, 5 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in . One Ashburton Place, Room 1719, Boston, Massach.u setts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Lorraine A.G. Tarrow, Esq. Page 2 February 12,2018 order to withhold a requested record. G. L. c. 66, 5 lO(d)(iv) (written response must "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..."); 950 C.M.R. 32.06(3); -also D ist. Attomev for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). The AGO'S November 2sthr esponse Accompanying its November 2gthr esponse, the AGO provided Mr. Sweet with 41 pages of email records without any assessment of fees, and informed Mr. Sweet that the AGO has withheld 181 pages of records responsive to the request as privileged communications. The AGO cites the common law attorney-client privilege and the common interest doctrine, along with Exemption (d) of the Public Records Law to withhold the 181 pages of emails. Common law attorney-client privilege 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 of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenbere Educ. Center. Inc.. v. Comm'r of the Dept. of Mental Retardation (No. 11, 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., 449 Mass. 444. 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 Elec. 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 Id. entity has the burden of proving the existence of the attorney-client privilege. 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.

Lorraine A.G. Tarrow, Esq. Page 3 February 12,2018 Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. 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 its November 28" response, the AGO reiterated what it explained in its September 7th response, "[tlhe withheld emails falls into the category of privileged attorney-client communications because they are emails between Assistant Attorney General (AAG) Robert Quinan and Chief Legal Counsel Michael Halpin that consist of legal advice and analysis concerning litigation in which the Massachusetts State Police (MSP) and the Civil Service Commission were parties. These inter-agency emails reflect: (1) confidential communications between attorneys representing Commonwealth entities that shared a common interest in an ongoing litigation; or (2) confidential coinmunications between the AGO as the attorney and MSP as the client. As such, these records are privileged attorney-client communications that are protected from disclosure." Common interest doctrine In his petition, Mr. Sweet states, "[clontrary to the AGO's response asserting the attorney-client privilege and the case law cited, AAG Quinan and Attorney Halpin represent opposing clients under docltets 1581CV05825 and 1481CV08044; therefore, the privilege does not apply." In its November 2gthr esponse, the AGO not only cites the Suffolk case, but also the common interest doctrine discussed in Hanover as applicable to the requested communications and the AGO's intent to withhold the privileged communications. See Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609 (2007). In Hanover, the SJC emphasized that the attomey- client privilege protects "statements made to or shared with necessary agents of the attorney or the client," and concluded that "[tlhere is no reason to treat confidential client communications differently when shared with an attorney representing a client having a common interest where the purpose for sharing is to provide a free flow of information essential to providing the best a. available legal services to the client." at 616. 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 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." G. L. c. 66, 5 10A(a) (emphasis added). In a February 6thd iscussion with a Public Records Division staff attomey, you indicated that the AGO will provide Mr. Sweet with a supplemental response to further explain its attorney-client claim in a manner that is compliant with requirements in Suffollc and G. L. c. 66, 5 10A.

Lorraine A.G. Tarrow, Esq. Page 4 February 12,2018 Exemption (d) The AGO also contends that in addition to being privileged attorney-client communications, many of the emails that are being withheld are also exempt under Exemption (4. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based 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, 5 7(26)(d); see -also E nvtl. Protection Agencv v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The AGO'S November 28" response indicates that because the communications are inter- agency communications among AAG Quinan, Chief Legal Counsel Halpin, and other attorneys within the AGO and MSP that relate to litigation strategy and oversight, Exemption (d) applies to withhold the communications. You state, "[tlhese communications reflect the 'candid thinking' necessary to come to a reasoned determination about how to proceed in litigation, including, among other things, decisions on whether to file appeals, the disclosure of which could impact current, threatened, and future litigations." Therefore, the AGO contends that these records reflect ongoing deliberative processes of the AGO and the MSP and are exempt from disclosure under Exemption (d). However, the AGO has not met its burden of specificity in claiming Exemption (d) and explaining whether any segregable portions may be provided. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). In the February 6thc onversation with this office, you indicated that the AGO would provide a further response concerning its Exemption (d) claim, as well as the attorney-client privilege claim to withhold the communications.

Lorraine A.G. Tarrow, Esq. Page 5 February 12,2018 Spectjicity in claiming exemptions Pursuant to the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. G. L. c. 66, 5 lO(b)(iv) (written response must "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.. ."); see also Globe News~aperC o. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. Order Accordingly, the AGO is hereby ordered to provide Mr. Sweet with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Brian Sweet (via email)