Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20180752)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 6,2018 SPR1.81752 Peter Wilson, Esq. Division of Capital Asset Management and Maintenance One Ashburton Place, 15 thF loor Boston, MA 02108 Dear Attorney Wilson: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (DivisiodDCAMM) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 2,2017, Mr. Herman requested to set up time to view any and all documents related to the Division's efforts to get yacht and boat clubs to sign leases pursuant to Chapter 65 of the Acts of 2010. Previous appeals This request was the subject of eight previous appeals. SPR1711559 Determination of the Supervisor of Records (November 16,201 7); SPRl7/16 18 Determination of the Supervisor of Records (November 22,20 17); SPR1711667 Determination of the Supervisor of Records (December 11 ,201 7); SPR17/1702 Determination of the Supervisor of Records (December 2 1, 201 7); SPR181054 Determination of the Supervisor of Records (January 26,2018 ); SPRl8/187 Determination of the Supervisor of Records (February 21,201 8); SPR18/302 Determination of the Supervisor of Records (March 23,201 8); SPR18/495 Determination of the Supervisor of Records (April 26,201 8). I closed SPR18/495 by ordering the Division to provide Mr. Herman with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the April 26t" determination, the Division provided a response on May 10, 20 18, indicating that some records are exempt from disclosure under Exemption (d) of the Public Records Law and the common law attorney-client privilege. G. L, c. 4, 8 7(26)(d). Unsatisfied with the Division's response, Mr. Herman petitioned this office and this appeal, SPR181752, was opened as a result. One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832- Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Peter Wilson, Esq. Page 2 June 6,201 8 Tlze 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, 8 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 order to withhold a requested record. G. L. c. 66, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 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 Division 's May 10""r esponse oth In its May 1 response, the Division indicates that due to the nature of the request and related appeals, it "has determined that it is appropriate to collectively, and broadly, interpret [Mr. Herman's] requests as: All documents related to boat club leases from 2010 to present." As such, the Division indicates that it "made a reasonable search of all of its files and electronic mail from its Office of Real Estate Management and the Office of the General Counsel and an agency-wide inquiry for any and all documents related to boat club leases from 201 0 to present." The Division reiterates that it "has maintained all records related to boat club leases from 2010 to present, in accordance with the State Records Retention Schedule, and has not destroyed any responsive documents." The Division notes that certain records requested by Mr. Herman do not exist. The Division further indicates that all the records related to the boat clubs would be made available for Mr. Herman's inspection but subject to redactions under Exemption (d) of the Public Records Law and the common law attorney-client privilege. Exemption (d) The Division claims it withheld portions of the 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

Peter Wilson, Esq. Page 3 June 6,2018 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. See Babets v. Sec'v of the Exec. Office of Human Sews., 403 Mass. 230,237 n.8 (19 88). 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 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). Under its Exemption (d) claim, the Division indicates that it made "i. [plartial redaction pursuant to the Deliberative Process Exemption . . . of draft leases and communications" because they contain "confidential information that is the subject of ongoing negotiations of three (3) unsigned boat leases (leases), including communications tolfrom the boat clubs to DCAMM." The Division indicates that "[tlhe redacted portions include information, proposals and/or responses related to rent, term, duties to maintain, termination provisions, particular issues relating to particular clubs, and appropriate in-kind consideration; which are currently the subject of agency assessment and deliberation." The Division explains that it made "[Qull redaction of intra-agency email communications, [because they are] . . . confidential electronic mail sent between representatives of DCAMM, and exclusively relate to ongoing negotiations of the [leases]. . . ." In camera inspection In order to analyze the legal basis of the Division's position, it is the finding of this office that an in camera review of an un-redacted copy of the responsive records withheld under Exemption (d), would facilitate a determination as to the applicability of any exemption claims made by the Division. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate"). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, 9 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Peter Wilson, Esq. Page 4 June 6,2018 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. $ee 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the Division is hereby ordered to provide this office with an un-redacted copy of the responsive records without delay. 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 (19 93). 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). 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 the attorney-client privilege claim, the Division states that it made "[flull redaction of records subject to the attorney-client privilege [because they] are confidential communications which were sent between DCAMM and its legal counsel in the Office of General Counsel for the

Peter Wilson, Esq. Page 5 June 6,2018 purpose of obtaining legal advice or assistance. DCAMM shall produce an itemized log of such privileged records." The Division provided a privilege log of nine emails it withheld under the attorney-client privilege on May 23,20 18. Although the Division indicates that the communications between it and the Division's legal counsel were made in confidence for the purpose of obtaining legal advice or assistance, based on the Division response, it is unclear if this privilege has been waived. Further, although the Division provided a log which gives a detailed description of the records, it remains unclear the roles that each party, author or recipient(s), played in each of the email records. The Division must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Division 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 pre0,sec.state.ma.u~. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman