Colman Herman v. Group Insurance Commission (SPR 20180969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2018 SPRlS/969 Rachelle S. Mercier, Esq. Associate General Counsel Group Insurance Commission 19 Staniford Street; P.O. Box 8747 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, § IOA; 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 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 appeals - SPRJ 8/519 and SPRJ 8/785 The responsive Email Chain #7 held by the Commission that is the subject of the current appeal has also been the subject of two previous appeals. See SPRl 8/519 and SPRl 8/785 Determinations of the Supervisor of Records (Supervisor) (April 30, 2018 and June 13, 2018). In my April 30th determination, given the Commission did not meet its burden of specificity in withholding email communications, I 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, § 1O A. 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 S. Mercier, Esq. SPR18/969 Page 2 July 13, 2018 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 #7. Mr. Herman stated the Email Chain #7" 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, this office opened appeal SPR18/785. In my June 13th determination of SPR18/785, I found that the Commission had not met its burden to withhold Email Chain #7 in its entirety under the common law attorney-client privilege. As a result, I ordered the Commission to review the record, redact where necessary and provide it in a manner consistent with my June 13th order, the Public Records Law, and its Regulations within ten business days. It is my understanding that a Public Records Division staff attorney discussed the email records, especially Email Chain #7, with you over the course of reviewing the requests and the Commission's responses, including the privilege logs provided to Mr. Herman and this office. Current appeal - SPRJ 8/969 Via email on June 28, 2018, the Commission provided Mr. Herman with a 4-paged Email Chain #7, redacting the content of the email chain, except the Header (From; To (including the employer); CC (individuals copied and their respective employer); Subject; and Dates of the email chains), and one phrase of content, stating "Following is additional detail from Meghan and [Elizabeth] on the process:" In addition, the Commission provided Mr. Herman with an updated copy of its May 14th privilege log. Upon receipt of Email Chain #7 and the Commission's updated privilege log pertaining to Email Chain #7, Mr. Herman petitioned the Supervisor and the current appeal, SPRl 8/969, 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, § 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) (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).

Rachelle S. Mercier, Esq. SPRlS/969 Page 3 July 13, 2018 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 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, § lOA(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(a). 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 - Updated privilege log (provided to Mr. Herman on June 28th) On June 28t\ the Commission provided Mr. Herman with the 4-page redacted Email Chain #7, redacting content except the Header (From; To (including the employer); CC

Rachelle S. Mercier, Esq. SPR18/969 Page 4 July 13, 2018 (individuals copied and their respective employer); Subject; and Dates of the email chains), and one phrase of content, stating "Following is additional detail from Meghan and [Elizabeth] on the process:" In addition, the Commission provided Mr. Herman with an updated copy of its May 14th privilege log. It states: "[7], Email chain - Attorney-Client Privilege (a) From: Ashley Maagero Lee, Chief of Staff; To: Brendan Moss, Press Secretary for Governor Charlie Baker (GOV); cc: Dominick Ianno, Chief of Staff (ANF), Sarah Finlaw, Deputy Communications Director (ANF); Megan Sisk, Deputy Chief of Staff (ANF); (b) Forwarded legal guidance from ANF counsel regarding procurement communications; (c ) This email has been redacted because it contains attorney-client communications. The first line of the email (which has been left unredacted) states, 'Following is additional detail from Meghan and Elizabeth on the process ... ' What follows ( and has been redacted) is attorney guidance from Elizabeth Denniston, Attorney for ANF. Elizabeth's guidance was forwarded to a group working on the same project and who needed the guidance for said project. Therefore, the [Commission] maintains that information is privileged." Although the Commission has provided a privilege log with a detailed description of Email Chain #7, including the names of the author and recipients, date, and subject matter of the record; however, it is still unclear how the privilege has not been waived by distribution of legal advice forwarded between the Commission's Chief of Staff to the Governor's Press Secretary and copied to Administration and Finance employees. It remains unclear who the client is who sought advice from an attorney, and that advice has not be waived by distribution to a third party. "Disclosing attorney-client communications to a third party generally undermines the privilege." See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). The Commission has still not met its burden of specificity in applying the attorney-client privilege to withhold the above mentioned email chain. Conclusion Accordingly, whereas I find the Commission has not met its burden to withhold Email #7, the Commission is hereby ordered to provide Mr. Herman with a response, in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any 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.

Rachelle S. Mercier, Esq. SPR18/969 Page 5 July 13, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman