Michael Dreslinski v. Department of Correction - Legal Division (SPR 20180976)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 17, 2018 SPRlS/976 Kate M. Silvia Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Michael Dreslinski appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on June 6, 2018, Mr. Dreslinski requested various categories of records related to communications of Department employees with other entities "on or about January 9, 2018 regarding [an identified individual] ... and/or his public record request ... made under the Connecticut Freedom of Information Act." On June 18, 2018, the Department responded to his request providing some records and redacting or withholding others under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). 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); 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. 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

Kate M. Silvia SPR18/976 Page 2 July 17, 2018 The Department's June 18th response In its June 18th response, the Department indicates that "some of the requested records are being withheld or redacted as they are exempt from disclosure pursuant to [Exemption (d)] as attorney-client privilege and/or the work product doctrine." The Department additionally indicates that it provided Mr. Dreslinski with "documents responsive to [his] request that are not exempt." In his petition for appeal, Mr. Dreslinski indicates the records provided to him were in redacted form. Exemption (d ) 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 factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). 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'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). 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, § 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). 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

Kate M. Silvia SPR18/976 Page 3 July 17, 2018 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). 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. Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. With respect to its Exemption ( d) claim, the Department's written response does not explain with specificity what legal or policy positions the records are related to, nor does it explain how their disclosure would taint the deliberative process. The response merely states that the responsive records are exempt under Exemption ( d) as "attorney-client privilege and/or the work product doctrine." The Department is reminded that "reasonably completed factual studies or reports on which the development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, § 7(26)(d). With respect to its attorney-client privilege and work product doctrine claims, the Department has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the Department did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. In addition, the Department has not identified the specific records that it believes fall into the attorney-client privilege. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460. Additionally, based on the Department's response, it is unclear what categories ofrecords it possesses, and specifically which records are being withheld in their entirety, which are being redacted and under which claim or combination of claims: Exemption (d), attorney-client privilege, or work product doctrine. See G. L. c. 66, § lO(b)(iv) (a written response shall "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 ... ); Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemption (d), the attorney client privilege, and the work product doctrine without any further explanation as to their applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, the

Kate M. Silvia SPR18/976 Page 4 July 17, 2018 Department has failed to explain how the documents are exempt from disclosure pursuant to Exemption ( d), the attorney-client privilege or the work product doctrine. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Dreslinski with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, · ~ Rebecca S. Murray Supervisor of Records cc: Michael Dreslinski