Colman Herman v. Group Insurance Commission (SPR 20180785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 13, 2018 SPR18/785 Rachelle S. Mercier, Esq. Associate General Counsel Group Insurance Commission Charles F. Hurley Building 19 Staniford Street, 4th Floor Boston, MA 02114 Dear Attorney Mercier: I have received the petition of Colman Herman appealing the response of the Group Insurance Commission (Commission) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested copies of: • All communications from January 15, 2018 to the present dealing with the Commission's plans to reduce the number of plans offering health insurance coverage through the Commission and the Commission's reconsideration of the reduction, including: 1. Internal communications exchanged between and/or among the Commissioners and the staff and outside parties; 2. External communications exchanged between and/or among the Commissioners and the staff and outside parties. • Communications include: emails, letters, memoranda, faxes, reports and notes, including any communications created or received on a personal computer. • Outside parties include: officials in the Executive Office of Administration and Finance, other state agencies, the Governor's Office, unions, workers and former workers who participate in the Commission's insurance plans, the general public, insurance companies and reporters. Previous appeal-SPRJB/519 In a March 29, 2018 response, the Commission informed Mr. Herman that the Commission is providing him with a small number of privileged documents that have been redacted. In addition, the Commission provided a privilege/exemption log for documents that the Commission is withholding in their entirety. 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

Rachelle Mercier SPR18/785 Page 2 June 13, 2018 Mr. Herman appealed the Commission's response, informing the Supervisor of Records (Supervisor) that the privilege log does not comply with the Suffolk Construction Co. case, and that the Commission's Exemption ( c) claim to withhold a draft of testimony before the Commonwealth Senate Ways and Means Committee lacks the required specificity in claiming an exemption. As a result, an appeal was opened. See SPR18/519 Determination of the Supervisor (April 30, 2018). In my April 30th determination, given the Commission did not meet its burden of specificity in withholding the testimony, in its entirety, under Exemption (c), I ordered the Commission to review and redact the record where necessary, and provide Mr. Herman with the record and a response to specifically explain any redactions. I also ordered the Commission to provide Mr. Herman with a supplemental response regarding its attorney-client privilege claim. See Suffolk Constr. Co. (Suffolk) v. DCAM, 449 Mass 444 (2007); see also G. L. c. 66, § IOA. Current appeal On May 14t\ the Commission provided Mr. Herman with a two-page privilege log in compliance with my April 30th determination. However, on May 31st after reviewing the privilege log, Mr. Herman petitioned the Supervisor regarding the Commission's attorney-client claim pertaining to Email Chain Number 7. Mr. Herman states, "[i]tem #7 in the log is an email chain that was not sent or received by any lawyers. Thus it cannot be withheld based on a claim of attorney-client privilege." As a result, 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, § 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, § 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 ... "); 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). 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

Rachelle Mercier SPR18/785 Page 3 June 13, 2018 made in confidence; and (3) that the privilege as to these communications has not been waived. 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). In camera review ofr ecords withheld under a claim ofa ttorney-client privilege G. L. c. 66, § 1 OA( a) discusses the ability of the Supervisor to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been withheld on the basis of a claim of the attorney-client privilege, the supervisor of records 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. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. G.L.c.66, § lOA(aj. As noted above, 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). Email Chain # 7 In its May 14th privilege log, the Commission did not provide the detailed description of Email Chain #7, by not providing the date of the email and the title of all the parties, autho~s and recipents to establish the existence of an attorney-client relationship. The Commission's log states: "[7]. Email chain -Attorney-Client Privilege (a) From Ashley Maagero Lee, Chief of Staff; To: Brendan Moss; cc: Dominick Ianno, Chief of Staff (ANF), Sarah Finlaw, Deputy Communications Director (ANF); Megan Sisk, Deputy Chief of Staff (ANF);

Rachelle Mercier SPRIS/785 Page 4 June 13, 2018 (a) Forwarded legal guidance from ANF counsel regarding procurement communications." The Commission's privilege log, pertaining to Email #7, provided the general subject matter, names and job titles of all of the individuals who sent and received the email, except Brandon Moss. The Commission did not provide Mr. Moss's job title or the date of this email. Nor, has the Commission demonstrated that an attorney or attorneys were involved in offering legal advice to a client, in the client's search for advice on the specified subject matter, or that the privilege has not been waived. Given that the first prong of the attorney-client privilege requires 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, it is unclear how this email between six non-attorney employees would fall within the scope of attorney-client privilege. See Suffolk, 449 Mass. at 450 n.9. Consequently, I find that the Commission has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold Email #7. See Suffolk; G. L. c. 66, § lOA(a). A review by this office of the Commission's privilege log finds that the Commission met its burden of specificity in claiming the attorney-client privilege to withhold email chains 2-6. The Commission's privilege log lists each email communication, providing the authors and recipients of the emails with their job titles, the attorney involved in offering legal advice to a client in the client's search for advice on the specified subject matter, and the dates of the emails. The Commission has met its burden of providing the detailed information required and ordered by the Supervisor in the April 30th determination to withhold the emails pursuant to the attorney client privilege. Conclusion Accordingly, whereas I find the Commission has not met its burden to withhold Email #7 in its entirety, the Commission is hereby ordered to review the record, redact where necessary and provide it in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of 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: Mr. Colman Herman