Colman Herman v. Massachusetts Educational Financing Authority (SPR 20180641)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2018 SPR18/641 Lisa Rooney Massachusetts Educational Financing Authority 60 State Street, Suite 900 Boston, MA 02109 Dear Ms. Rooney: I have received the petition of Colman Herman appealing the response of the Massachusetts Educational Financing Authority (Authority) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Herman requested a "copies of any and all communications in the files of the Massachusetts Educational Finance Agency (MEFA) that deal with MEFA withdrawing it [sic] membership in the National Council of Higher Education Resources." Mr. Herman's request also indicates that "[c]ommunications include, but are not limited to, emails, letters, memoranda, faxes, and notes." 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, § IOA(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). 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. 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

Lisa Rooney SPR18/641 Page 2 May 21, 2018 Common law attorney-client privilege While this appeal was pending the Authority provided a response dated May 16, 2018. In its May 16th response, the Authority indicates it is withholding records pursuant to common law attorney-client privilege and attorney work product. The Authority explains that "its personnel contacted [the Authority's] legal counsel. .. to seek legal advice on [the Authority's] potential withdrawal from the National Counsel of Higher Education Resources ("NCHER") at the time [the Authority] began considering this issue. Thereafter, [the Authority's] personnel and [the Authority's legal counsel] engaged in confidential written communications regarding [the Authority's] decision to withdraw from NC HER for the purpose of seeking legal advice in connection with that decision." The Authority further indicates that it "has not subsequently waived the attorney-client privilege, work product protection, or otherwise disclosed theses confidential communications with its legal counsel in any way." 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." Hull 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, 449 Mass. at 450 n.9; 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. Under 950 C.M.R. 32.06(3)(d), where a record has been withheld on the basis of a claim of the attorney-client privilege, the records access office must provide a detailed description of the record, including names of the author and recipients, and in general terms, the subject of the matter of the withheld information. Based on the Authority's response it seems that additional information could be provided to indicate how the privilege applies to the withheld records in Mr. Herman's request. While the Authority provided an explanation as to why these records were withheld, the Authority has not provided a privilege log including the names of the author and recipient, the date, the substance of each record, and whether the attorney-client privilege has been waived. Consequently, I find

Lisa Rooney SPR18/641 Page 3 May 21, 2018 that the Authority has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the records. I understand a member of the Public Records Division staff contacted your office about this matter. Order Accordingly, the Authority is ordered to provide Mr. Herman 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, ~y~ Supervisor of Records cc: Colman Herman