Michael Sacco, Esq. v. Public Employee Retirement Administration Commission (SPR 20180939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records John Parsons, Esq. General Counsel Public Employee Retirement Administration Commission 5 Middlesex Avenue, Suite 304 Somerville, MA 02 14 5 Dear Mr. Parsons: I have received the petition of Michael Sacco, Esq. of the Law Ofices of Michael Sacco, P. C. appealing the response of the Public Employee Retirement Administration Commission (Commission) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, on May 18, 201 8, Attorney Sacco requested ". . . all documents that pertain or relate to any communications by and between [the Commission] and the Office of the Attorney General involving [the Commission's] appeal of the Contributory Retirement Appeal Board's decision rendered in Robert Vernava v. Swampscott Retirement Board, Contributory Retirement Appeal Board, CR-12-640 and the [the Commission's] appeal of the Superior Court's decision in Public Employee Retirement Administration Commission v. Contributory Retirement Appeal -Board-, et al. , Suffolk Superior Court, Civil Action No. 1584CV01430." The Commission provided a response on June 7,2018 , denying access to responsive records pursuant to the common law attorney-client privilege. Unsatisfied with the Commission's response, Attorney Sacco petitioned this office and this appeal, SPR181939, was opened as a result. TIze 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, fj 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, 9 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, fj lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1 995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 * (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

John Parsons, Esq. Page 2 July 10,2018 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 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlze Commission's June 7f"r esponse In its June 7,201 8 response, the Commission asserts that "[all1 documents responsive to [Attorney Sacco's] request have been withheld pursuant to attorney-client privilege under the provisions of G.L. c. 4, 5 7, G.L. c. 66, $5 10A and IOB. All of the documents contain protected information between [the Commission] and its attorney, the Office of the Attorney General, pursuant to G.L. c. 12, 5 3, and discuss litigation strategy and are thus protected by the attorney- client privilege exemption to the Public Records law." The Commission cites the Suffolk decision to support its position. 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 Cow., 453 Mass. 293, 306 (2009). 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, 5 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

John Parsons, Esq. Page 3 July 10,2018 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 51 1. The Commission did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 C.M.R. 32.06(3)(~)(4). Therefore, the Commission must identify the type of record(s) it has in its possession that it withheld. Further, although the Commission claims that "[all1 of the documents contain protected information between [the Commission] and its attorney, the office of the Attorney General . . . and discuss litigation strategy. . .," it is unclear whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. In addition, record custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of Id. privilege." at 460. 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, 5 10A(a). Additionally, it is also unclear why the responsive records are being withheld in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 10(a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Commission must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion The Commission is ordered to provide Attorney Sacco with a supplemental response, 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, w Rebecca S. Murray Supervisor of Records cc: Michael Sacco, Esq.