Michael Sacco, Esq. v. Public Employee Retirement Administration Commission (SPR 20181130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13,2018 SPR18/1130 John Parsons, Esq. General Counsel Public Employee Retirement Administration Commission 5 Middlesex Avenue, Suite 304 Somerville, MA 02145 Dear Attorney Parsons: I have received the petition of Michael Sacco, Esq. of the Law Offices of Michael Sacco, P. C. appealing the response of the Public Employee Retirement Administration Commission (Commission or PERAC) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 18,2018, Attorney Sacco requested ". . . all documents that pertain or relate to any communications by and between [the Commission] and the Office of the Attorney General involving [the Commission's] appeal of the ~ontributoRje tirement Appeal Board's decision rendered in Robert Vernava v. Swampscott Retirement Board, Contributory Retirement Appeal Board, CR-12-640 and the [the Commission's] appeal of the Superior Court's decision in Public Employee Retirement Administration Commission v. Contributory Retirement d, Appeal Board, Suffolk Superior Court, Civil Action No. 1584CV01430." Previous appeal This request was the subject of a previous appeal. See SPR181939 Determination of the Supervisor of Records (July 10,2018 ). In my July 10'" determination I ordered the Commission to provide Attorney Sacco with a supplemental response, provided in a manner consistent with the order, the Public Records Law, and its Access Regulations (Regulations). The Commission responded on July 20,20 18 by providing 1 document but withholding 5 others under the attorney-client privilege. Attorney Sacco appealed and SPRl811130 was opened as a result. 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, § 10A(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). One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre * pre@sec.state.ma.us

John Parsons, Esq. Page 2 August 13,2018 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlep, 419 Mass. 507, 5 11 (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. Current appeal In its June 7,2018 response the Commission asserts that "[all1 documents responsive to [Attorney Sacco's] request have been withheld pursuant to attorney-client privilege under the provisions of G.L. c. 4, 5 7, G.L. c. 66, $9 1OA and 10B. All of the documents contain protected information between [the Commission] and its attorney, the Office of the Attorney General, pursuant to G.L. c. 12, 5 3, and discuss litigation strategy and are thus protected by the attorney- client privilege exemption to the Public Records law." In its July 2othr esponse the Commission provided an index describing 6 documents. The Commission provided Document 1 in the index with few redactions but withheld the other 5 documents under the attorney-client privilege. The index includes a description of the document, the author, recipient, date, and summary of the information contained within the document. See G. L. c. 66, 5 1O A(a). You assert that the Commission "still holds that these documents are protected by attorney-client privilege as the Commission has not waived this right by disclosure to a third party or otherwise. The discussions between the Commission's legal staff and Attorney General's Office are protected, confidential communications, particularly in this situation where the requestor was the opposing counsel in the underlying matter." The Commission also notes that "the information in a majority of these documents provides pertinent information to the cases at hand and cannot be shared in redacted form without compromising the strategy and reasoning employed by the Commission." In his appeal petition Attorney Sacco asserts "I do not believe the attorney-client privilege exists between the Attorney General [OAG] and PERAC in this particular matter." He references the Contributory Retirement Appeal Board (CRAB) and suggests "[slince both CRAB and PERAC are state administrative agencies, where such as here their positions are at odds with each other, the OAG cannot represent both CRAB and PERAC in litigation as opposing parties." Attorney Sacco further asserts that "[c]learly, the OAG as discussed below, was not acting as the attorney for PERAC in this case - it could not possibly do so, as it represented CRAB in the Superior as well as in the Supreme Judicial Court (the SJC took Vernava from the Appeals Court on its own motion)." In furtherance of this claim, he suggests that "PERAC was not requesting the OAG's advice with respect to the rendition of legal services, or for obtaining legal advice or assistance; rather, PERAC was seeking permission to challenge another administrative agency's decision, and clearly the OAG would be in a position of conflict to give advice to two administrative agencies that were about to be involved in litigation against one another." Attorney Sacco refers to the document provided by the Commission and suggests that

John Parsons, Esq. Page 3 August 13,2018 it "clearly says that PERAC is seeking 'permission' not legal advice, and thus no attorney-client privilege exists as it pertains to this particular matter." 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." Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (19 93). 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 (I) 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 -Suf folk, 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). I find the Commission must provide additional information regarding the nature of the attorney-client relationship between the Commission and the OAG; specifically, in light of the issues raised in Attorney Sacco's appeal, it must describe how the OAG was acting as an attorney in this matter and whether 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. Suffolk, 449 Mass. at 450 n.9. Conclusion The Commission is ordered to provide Attorney Sacco with a supplemental response, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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. Sincerely, 0 Rebecca S. Murray - Supervisor of Records cc: Michael Sacco, Esq.