Jon Chesto v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20180263)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 19, 2018 SPR18/263 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 Jon Chesto of the Boston Globe appealing the response of the Executive Office of Energy and Environmental Affairs (EEA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Chesto requested "[a]ll correspondence with EEA employees with regard to the Northern Pass Proposal as it relates to the Section 83D procurement from June 1, 2017, through January 30, 2018." EE:A provided a response on February 22, 2018 in which it provided certain responsive records but withheld others under Exemptions (d) of the Public Records Law as well as the attorney-client privilege. G. L. C. 4, § 7(26)(d). 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Jamie Tosches, Esq. SPR18/263 Page 2 March 19, 2018 Exemption (d) Exemption ( d) allows the withholding of: 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 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. See Babets v. Sec'y 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). EEA indicates that "[w]e have located documents most of which relate to media-related inquiries and other matters that relate to policy positions being developed by the Department of Energy Resource ('DOER') during the Section 83D process. Therefore, these emails are exempt from disclosure." With respect to the deliberative process, you contend "[p]ursuant to the Section 83D of Chapter 169 of the Acts of 2008, as amended by chapter 188 of the Acts of 2016, An Act to Promote Energy Diversity, the Section 83D procurement process is ongoing. DOER is a part of the team responsible for the procurement process, and, for instance, holds a role in the evaluation of bids and the monitoring of contract negotiations. The withheld materials reflect this deliberative process to date." Regarding the impact of disclosure, EEA asserts "[t]he release of these materials would likely impede the DOER's successful involvement in the ongoing deliberative process under Section 83D, if prematurely disclosed. Further, pursuant to Section 83D, any long term contracts resulting from the procurement are subject to review and approval of the Massachusetts Department of Public Utilities (DPU)." You also note that "[u]ntil the DPU process is complete, any associated appeal periods have ended, the procurement process remains active and records related to the deliberative process are exempt from disclosure." Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Jamie Tosches, Esq. SPR18/263 Page 3 March 19, 2018 EEA did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, EEA withheld responsive records without identifying the records. Therefore, EEA must identify the type of record(s) it has in its possession that it withheld and explain which specific records fall within each of the exemptions claimed by EEA. Also, EEA indicated that "the 83D procurement process is on-going." However, based on EEA's response, it is unclear the nature of the deliberation that is ongoing or how releasing the records would taint the deliberative process. EEA is advised that Exemption ( d) "is limited to recommendations on legal and policy matters." It should also be noted that in his appeal petition, Mr. Chesto indicates "we argue that the deliberative process ended when Northern Pass was chosen and that these documents should be a matter of public record." Based on EEA's response, it is unclear the policy positions that are being developed by EEA. It should also be reiterated that any information contained in these records that is factual in nature is subject to disclosure as Exemption ( d) does not apply to such information. EEA has also not met its burden of explaining why the requested records cannot be redacted under the exempt10ns m the Public Records Law, and the balance of the record provided to Mr. Chesto. 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). Common law 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 made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass.444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Under its attorney-client privilege claim, EEA indicates that "communications between legal counsel and DOER staff related to legal advice and assistance relating to the procurement are exempt from disclosure." EEA also provides information about the withheld emails. However, it is unclear whether the privilege has been waived. See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (concluding that disclosing attorney-client communications to a third party generally undermines the privilege). Pursuant to the Public Records Law, in assessing whether a records custodian

Jamie Tosches, Esq. SPR18/263 Page 4 March 19, 2018 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 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). Conclusion Accordingly, EEA is ordered to provide Mr. Chesto 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, fwvUA~ Rebecca S. Murray Supervisor of Records cc: on esto