Joshua Miller v. Department of Revenue (SPR 20180574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 9, 2018 SPRlS/574 Roger H. Randall Department of Revenue 19 Staniford Street Boston, MA 02114 Dear Mr. Randall: I have received the petition of Joshua Miller appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 26, 2018, Mr. Miller requested the following records: "l. ... all emails to and from [an identified individual] on February 26, 2018. That is, I request all emails that [the identified individual] sent and received on that date, regardless of whether he was in the to, from, cc, and/or bee field. 2. . .. any email attachments, physical notes, papers, maps, tapes, statements, or any other materials created or received by [the identified individual] on February 26, 2018. 3. . .. all Commonwealth-related texts messages, iMessages, SMS messages sent or received by [the identified individual] on February 26, 2018, whether they be his personal or Commonwealth-issued cellular phone. 4. . .. a list of all phone calls made or received by [the identified individual] on both Commonwealth-connected landlines and cell phones on February 26, 2018." The Department provided a response on March 28, 2018, acknowledging receipt of the public records request. This response included the Department's initial objections to producing the records. The Department subsequently provided another response on April 25, 2018, which included portions of the responsive records and denied access to others pursuant to Exemptions (a), (b), (d), and (e) of the Public Records Law, and the common law attorney-client privilege. G. L. c. 4, § 7(26)(a), (b), (d), (e). Unsatisfied with the Department's responses, Mr. Miller petitioned this office and this appeal, SPRl 8/574, was opened as a result. While this appeal was pending, the Department provided a supplemental response on May l, 2018. 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

Roger H. Randall SPR18/574 Page 2 May 9, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's March 2st11, April 25th, and May pt responses In its March 28t\ April 25t\ and May 1st responses, the Department indicated that it provided 44 emails or email chains including their attachments. The Department asserted that it withheld portions of the responsive records pursuant to the following exemptions. Exemption (a) The Department stated that it withheld responsive records under G. L. c. 62C, § 21 (d ), as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that

Roger H. Randall SPR18/574 Page 3 May 9, 2018 such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department indicated that it withheld 2 email chains under G. L. c. 62C, § 21(d), because it would disclose the Department's "collection techniques or data for compliance ... " The statute provides in relevant part: The confidentiality provisions and the prohibition as to disclosure contained in this section shall apply to standards used or to be used for the selection of tax returns for examination, data used or to be used for determining such standards and such other materials as reflect audit or compliance selection criteria, audit issue criteria or audit, compliance and collection techniques, if the commissioner determines that disclosure will seriously impair assessment, collection or enforcement under the tax laws G. L. C. 62C, § 21(d). Exemption (b) The Department claimed it withheld responsive records pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not

Roger H. Randall SPR18/574 Page 4 May 9, 2018 only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. The Department indicated that it withheld 5 emails or email chains under Exemption (b ), because they are matters of internal personnel procedures as they concern "either an impending retirement and the filling of that position or one of the candidates for the position of Labor Relations Director." Exemption ( d) The Department indicated that it withheld responsive records pursuant to Exemption ( d) of the Public Records Law. 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). The Department stated that it withheld 2 emails or email chains under Exemption ( d) "that constitute policy under development ... " Exemption (e) The Department claimed it withheld responsive records pursuant to Exemption ( e) of the Public Records Law. Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit

Roger H. Randall SPR18/574 Page 5 May 9, 2018 G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e ). The second criterion of Exemption (e ) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption ( e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Burden of specificity; segregable portions 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, § 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 Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's responses do not contain the specificity required in a denial of access to public records. With respect to the Department's Exemption (a) claim, to the extent that portions of the responsive records contain "collection techniques or data for compliance," those portions may properly be withheld from disclosure. With respect to the Department's Exemption (b) claim, the Department claims the 5 email communications it withheld concern an impending retirement and filling of that position. Although the Department asserts that these matters pertain to internal personnel procedures, I find that the Department has not met its burden to establish how the "proper performance of necessary government functions requires such withholding" as required by Exemption (b ). With respect to Exemption ( d), although the Department claims the 2 emails or email chains "constitute policy under development," it is unclear the nature of the deliberation that is ongoing or how releasing the records would taint the deliberative process. The Department is

Roger H. Randall SPR18/574 Page 6 May 9, 2018 advised that Exemption ( d) "is limited to recommendations on legal and policy matters." Based on the Department's response, it is unclear the nature of the policy positions that are being developed by the Department. It should also be reiterated that any information contained in these records that is factual in nature is always subject to disclosure as Exemption (d ) does not apply to such information. With respect to Exemption ( e ), the Department claimed this exemption to withhold responsive records in its initial March 28th response. Although the Department in its April 25th resfonse indicated that the response incorporates by reference its initial objections in the March 28t response, the Department makes no further claims under this exemption in the April 25th or May 1st responses. As such, it is unclear if the Department is still withholding any records under Exemption ( e ). The Department must clarify this matter. Further, I find that the Department has not met its burden of demonstrating that the responsive records may be withheld from public disclosure in their entirety under Exemptions (a), (b), (d), and (e). The statutory exemptions are narrowly construed and not blanket in nature. Therefore, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. Reinstein, 378 Mass. at 289-90; G. L. c. 66, § lO(a). The Department must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. Common law attorney-client privilege The Department further claimed it withheld 3 emails or email chains under the common law attorney-client privilege. The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Municipal Lighting, Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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. 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). 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.

Roger H. Randall SPR18/574 Page 7 May 9, 2018 The Department did not provide any detail or specificity on how the responsive records are protected by the common law attorney-client privilege. The Department must first apply the three-step test in Suffolk to prove that the records fall under the protection of the attorney-client privilege and cannot be disclosed to the public. In addition, 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 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). No duty to create records; additional responsive records; records management Under the Public Records Law, the Department is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § 6A(d ); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In the its responses, the Department indicated that the identified individual did not use his or her Commonwealth issued cellular phone or personal cell phone for work-related activities on February 26, 2018. Therefore, it does not possess text messages, iMessages, or SMS messages. Whereas the Department explains it does not possess · any records responsive to Request 3, I find that Mr. Miller's appeal related to this request is resolved. With respect to Request 4, seeking "a list of all phone calls made or received ... on both Commonwealth connected landlines and cell phones ... ," the Department indicated that it "does not keep track of what numbers [the identified individual] dialed or received calls from ... and therefore [is] unable to produce such a record." Based on the Department's response, it is unclear if the identified individual made or received work-related phone calls on the Commonwealth connected landlines and cell phones. It is additionally uncertain why the Department cannot obtain these records if they exist. The Department is advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein, 378 Mass. at 289-90 (1979). Whenever original public records are created outside the offices of the agency, they shall be transferred on a regular and frequent basis to secure storage in the agency's building. The Department must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is hereby

Roger H. Randall SPR18/574 Page 8 May 9, 2018 ordered to review the records, redact where necessary, and provide Mr. Miller with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Miller