Colman Herman v. Department of Environmental Protection - Bureau of Waste Site Cleanup (SPR 20181063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 2, 2018 SPR18/1063 Kathleen Delaplain, Esq. Senior Counsel Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received the petition of Colman Herman appealing the response of the Department of Environmental Protection (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested a copy ofrecords regarding the outcome of the Newton Country Day case. The Department's July 18, 2018 response In its July 1 gth response, the Department identified the case Mr. Herman referred to in his request as, "OADR Docket No. 2017-040; In the Matter ofA cademy oft he Sacred Heart (Newton Country Day School)." Accompanying its response, the Department provided fifty (50) pages of additional records that were created or received since Mr. Herman's original December 28, 2017 request, including copies of a recently filed settlement agreement, draft license and license plans that accompanied the settlement agreement. The Department provided the records; waiving all applicable fees under the Public Records Law and Access Regulations. The Department advised Mr. Herman that it is withholding approximately twenty (20) emails under both Exemption (d) and the common law attorney-client privilege. On July 19, 2018, Mr. Herman petitioned the Supervisor of Records (Supervisor) for an appeal indicating that the Department did not provide sufficient detail to comply with Suffolk to withhold the emails under the common law attorney-client privilege. Mr. Herman also questioned why the Department has claimed Exemption ( d), the deliberative process exemption, when the Department has already provided him with a copy of the recently filed settlement agreement. As a result, this appeal was opened. 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

Kathleen Delaplain, Esq. SPR18/1063 Page 2 August 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) (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). The Department's July 18, 2018 response and July 24, 2018 supplemental response With its July 18th response, the Department provided Mr. Herman with fifty (50) pages of records responsive to his request for records regarding the outcome of the Newton Country Day School case, including the settlement agreement, draft license and draft license plans that accompanied the settlement agreement for the case. The Department initially withheld emails under both Exemption ( d) and the attorney-client privilege. In its July 18th response, the Department explained that the emails are all intra-office communications between the Department's Legal Counsel and staff members seeking legal advice and obtaining legal advice regarding the on-going appeal process from the settlement, and finalization of a license. In a July 24th supplemental response after this appeal was opened, the Department provided Mr. Herman with a privilege log for twenty-four (24) emails withheld under the common law attorney-client privilege. Common law attorney-client privilege The Department is withholding the email communications under the common law attorney-client privilege. Initially, in its July 1 gth response, the Department did not meet its burden of specificity in claiming attorney-client privilege to withhold the emails under both the Suffolk case and the Public Records Law. See G. L. c. 66, § lOA(a). In its July 18th response the Department explained that it has approximately twenty emails were sent from Department Legal Counsel, Sam Bennett to Department Chapter 91 Program staff members, Ben Lynch and Jerome Grafe. The purpose of the emails was to provide legal advice and obtain legal advice concerning the appeal of the draft waterways license, under G. L c. 91. The Department further explained that the emails were not circulated to any third parties as to protect the privilege from being waived. The Department did not provide the dates

Kathleen Delaplain, Esq. SPR18/1063 Page 3 August 2, 2018 of each individual email. As a result, Mr. Herman appealed the July 18th response regarding the emails. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for the purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc. v. Comm'r of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Electric Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the general rule that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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). In order to properly claim the common law attorney-client privilege, not only must the records custodian comply with the three-step test in Suffolk, but must also comply with the requirements in the Public Records Law to withhold records based on the claim of attorney-client privilege. The Public Records Law requires that 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).

Kathleen Delaplain, Esq. SPR18/1063 Page 4 August 2, 2018 In its July 24th response, the Department explained, "the general substance of the communications involves providing legal advice concerning the settlement of the appeal. The appeal involves a draft Chapter 91 [l]icense and [p]lans." With its July 24th response, the Department provided Mr. Herman and this office with a privilege log detailing each of the twenty-four responsive emails that the Department is withholding under the attorney-client privilege. The privilege log included the dates and times of each email, the names of the senders and recipients, the general subject matter of each of the email communications, and that the Department is withholding the emails under the attorney-client privilege. Finally, the Department confirmed as it had in its July 18th response that the communications were made in confidence and the privilege has not been waived. Conclusion Where the Department has provided a sufficient privilege log to support its attorney client privilege claim to withhold the emails, I find that the Department has now met its burden of specificity in doing so. Accordingly, I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman Edmund J. Coletta, Jr., Press Secretary