Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20180889)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2018 SPR18/889 Peter Wilson, Esq. Deputy General Counsel Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor 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 (Division/DCAMM) to a request for public records. G. L. c. 66, § lOA; 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 previous appeals. See SPRl 7/1559 Determination of the Supervisor of Records (November 16, 2017); SPRl 7/1618 Determination of the Supervisor of Records (November 22, 2017); SPRl 7/1667 Determination of the Supervisor of Records (December 11, 2017); SPRl 7 /1702 Determination of the Supervisor of Records (December 21, 2017); SPR18/054 Determination of the Supervisor of Records (January 26, 2018); SPR18/187 Determination of the Supervisor of Records (February 21, 2018); SPR18/302 Determination of the Supervisor of Records (March 23, 2018); SPR18/495 Determination of the Supervisor of Records (April 26, 2018); SPR18/752 Determination of the Supervisor of Records (June 6, 2018). I closed SPRl 8/752 by ordering the Division to provide Mr. Herman with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the June 6th determination, the Division provided a response on June 15, 2018, which provides additional information to support its common law attorney-client privilege claim. Unsatisfied with the Division's response, Mr. Herman petitioned this office and this appeal, SPR18/889, was opened as a result. 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

Peter Wilson, Esq. SPR18/889 Page 2 July 2, 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, § 1 O(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 June 15111 response In its June 15, 2018 response, the Division indicates that its revised log identifies the role of each author and recipient in the nine emails previously withheld under the privilege and asserts that the privilege "has not been waived for these documents." 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." 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306

Peter Wilson, Esq. SPR18/889 Page 3 July 2, 2018 (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. In the privilege log provided, the Division claims the nine emails previously withheld under the attorney-client privilege are "[e]mail exchange[s] between counsel to [the Division] and counsel to DCR (client agency) regarding" proposed language and terms for unsigned lease, proposed response to counter-party to unsigned lease, status of multiple lease negotiations and revisions of lease and lease plan. However, although the Division claims DCR is a "client agency," it is unclear the nature of the attorney-client relationship between the Division and DCR. 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 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman