Michael Dreslinski v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20181052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

August 1, 2018

SPR18/1052 Jennifer Sulla, Esq.

Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114

Dear Attorney Sulla:

Thave received the petition of Michael Dreslinski appealing the response-of the

Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dreslinski requested various categories of records pertaining to him.

Current Appeal

In a letter dated June 14, 2018, the EOEEA provided Mr. Dreslinski some records responsive to his request and withheld 15 categories of records under the attorney-client

privilege. Unsatisfied with this response, Mr. Dreslinski petitioned this office and as a result SPR18/1052 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, § 1OA(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, § 10(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.

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

Jennifer Sulla, Esq. SPR18/1052 Page 2 August 1, 2018

Common Law Attorney-client Privilege

In its June 14™ letter the EOEEA states, “Tw]e have withheld the following 15 records as exempt from disclosure under the attorney-client privilege.” Please be advised, 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); 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).

When 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, § 10A(a).

The EOEEA’s response did not contain the specificity required to withhold records under the common law attorney-client privilege. The EOEEA must provide Mr. Dreslinski a response with further information relating to grounds upon which the attorney-client privilege is being claimed as contemplated in G. L. c. 66, § 10A(a).

Conclusion

Accordingly, the EOEEA is ordered to provide Mr. Dreslinski 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.

Lyluson

tolueoo S. Murray

Supervisor of Records

cc: Michael Dreslinski