Colman Herman v. Division of Capital Asset Management (SPR 20181072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 2, 2018 SPRlS/1072 Natalie B. Sawyer Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Ms. Sawyer: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (Division/DCAMM) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 2, 2017, Mr. Herman requested to set up time to view any and all documents related to the Division's efforts to get yacht and boat clubs to sign leases pursuant to Chapter 65 of the Acts of 2010. Previous appeals This request was the subject of previous appeals. See SPRl 7/1559 Determination of the Supervisor of Records (November 16, 2017); SPRl 7/1618 Determination of the Supervisor of Records (November 22, 2017); SPRl 7/1667 Determination of the Supervisor of Records (December 11, 2017); SPRl 7/1702 Determination of the Supervisor of Records (December 21, 2017); SPRl 8/054 Determination of the Supervisor of Records (January 26, 2018); SPRl 8/187 Determination of the Supervisor of Records (February 21, 2018); SPR18/302 Determination of the Supervisor of Records (March 23, 2018); SPR18/495 Determination of the Supervisor of Records (April 26, 2018); SPR18/752 Determination of the Supervisor of Records (June 6, 2018); and SPR18/889 Determination of the Supervisor of Records (July 2, 2018). I closed SPR18/889 by ordering the Division to provide Mr. Herman with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the July 2nd determination, the Division provided a response on July 17, 2018, which provides additional information to support its common law attorney-client privilege claim. Contending that the "January 10, 2017 email is not subject to the claim of attorney-client privilege[,]" Mr. Herman petitioned this office and this appeal, SPRl 8/1072, was opened as a result. 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

Natalie Sawyer SPR18/1072 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, § IO(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division's July 1 ih response In its July 17, 2018 response, the Division indicates that the nine emails previously withheld under the attorney-client privilege "consist of emails sent between employees of, and counsel to, DCAMM and the Department of Conservation & Recreation ('DCR') regarding confidential, ongoing negotiations with private entities for boat club leases and contain discussion of legal strategies and advice." Regarding the nature of the attorney-client relationship between DCR and the Division, the Division explains that it "provides real estate services to the Commonwealth and its agencies, including DCR. In the lease of boat clubs to private entities, DCAMM serves as a representative for DCR and is charged with negotiating and entering agreements on its behalf." The Division further states that " ... DCAMM' s interests are wholly aligned with those of DCR and counsel to both DCAMM and DCR provide legal advice for the common interests of those agencies. Each of the Privileged Documents consist[s ] of DCAMM and DCR attorneys and staff exchanging confidential information regarding ongoing lease negotiations and strategy." The Division posits that "[t]he common interest doctrine has been adopted by the Supreme Judicial Court of Massachusetts as an 'extension of the attorney-client privilege to any privileged communication shared with another represented party's counsel in a confidential manner for the purpose of furthering a common legal interest.' Hanover Inc. Co. v. Rapo & Jepsen Ins. Servs., Inc., 499 Mass. 609, 612 (2017) ..." The Division indicates that "[e]ach of the Privileged Documents were exchanged with DCAMM and/or DCR counsel on a confidential basis, and were exchanged for the common purpose of negotiating lease terms which are beneficial to DCAMM, DCR and the Commonwealth as a whole. As such, the Privileged

Natalie Sawyer SPR18/1072 Page 3 August 2, 2018 Documents exchanged between DCAMM, DCR and their respective attorneys remain subject to the attorney-client privilege. 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 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., 449 Mass. at 619 (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. In his petition for appeal, Mr. Herman claims that"[o ]ne of the individuals copied on the [January 10, 2018] email ... is identified as a 'DCAMM surveyor."' Mr. Herman claims that because the identified individual is a private surveyor and not a government employee, the "email is not subject to the claim of attorney-client privilege." Based on Mr. Herman's claim, it is unclear whether the privilege has been waived. See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (concluding that disclosing attorney-client communications to a third party generally undermines the privilege). The Division must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Division is ordered to provide Mr. Herman 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.

Natalie Sawyer SPR18/1072 Page4 August 2, 2018 Sincerely, - - ~ ~ ... Rebecca S. Murray Supervisor of Records cc: Colman Herman