Colman Herman v. Massachusetts Gaming Commission (SPR 20181193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2018 SPR18/1193 Carrie Torrisi, Esq. Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Attorney Torrisi: I have received the petition of Colman Herman appealing the response of the Massachusetts Gaming Commission (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 8, 2018, Mr. Herman requested" ... hard copies and electronic copies of all invoices submitted by outside law firms to the [Commission] for the period May 1, 2017 to April 30, 2018." The Commission provided responses on August 3, 2018 and August 6, 2018, which included portions of the responsive records in redacted form and indicating that other portions have been withheld pursuant to Exemption (f) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(f). Unsatisfied with the Commission's responses, Mr. Herman petitioned this office and this appeal, SPRl 8/1193, was opened as a result. While this appeal was pending, the Commission provided a supplemental response on August 15, 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); 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

Carrie Torrisi, Esq. SPR18/1193 Page 2 August 17, 2018 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. The Commission's August and August 61 responses 3rd h In its August 3, 2018 response, the Commission indicates" ... documents related to [its] ongoing investigation concerning Steve Wynn and Wynn Resorts have been withheld" pursuant to Exemption (f). The Commission further states that" ... information protected by the attorney client privilege has been redacted." In its August 6, 2018 response, the Commission indicates that it" ... has paid $92,984 to Anderson & Kreiger and $51,466 to Rubin and Rudman for work done on the investigation to date." The Commission further states "[a]dditionally, ... in providing these documents, the Commission does not in any way waive its right to the attorney-client privilege or the work product privilege in connection with any documents discussed therein. The information redacted pertains to confidential advice received from Anderson & Krieger, attorneys representing the Commission as Special Assistant Attorneys General, regarding litigation strategy on the FBT Everett Realty v. MGC litigation and the City of Revere et. al. v. MGC litigation, which includes certiorari claim, an open meeting law violation claim arising out of the Commission's grant of the Region A Category 1 gaming establishment license to Wynn MA LLC in 2014." Exemption (I) The Commission indicates that it withheld certain invoices pursuant to Exemption (f) of the Public Records Law. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(:f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-

Carrie Torrisi, Esq. SPR18/l l 93 Page 3 August 17, 2018 case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Common law attorney-client privilege The Commission also indicates that it redacted portions of the responsive records pursuant to the 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. 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. Pursuant to the Public Records Law, 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, § IOA(a). The Commission's August 15th supplemental response In its August 15, 2018 response, the Commission asserts that "[t]he invoices contain entries concerning the attorney's time spent on a multitude of tasks, from attending meetings to drafting emails, motions, and memoranda. Where such entries include information related to the development or provision of legal advice and/or the development and discussion of legal strategy, such privileged information was appropriately redacted." The Commission further states that while it can provide Mr. Herman with a privilege log, it notes that" ... a log would not allow any additional information to be gleaned than that which has already been provided,

Carrie Torrisi, Esq. SPR18/1193 Page 4 August 17, 2018 particularly given that each invoice identifies the general subject matter of the invoice (e.g. the relevant litigation) .... The invoices are, in essence, themselves logs." With respect to its Exemption (f) claim, the Commission asserts that "[t]he invoices in question solely contain confidential legal advice and strategy related to the Commission's investigation into Wynn and Wynn Resorts, disclosure of which could compromise the investigation and alert suspects of the investigation to the Commission's investigatory activities." The Commission posits that its "Investigations and Enforcement Bureau anticipates concluding its investigation by the end of summer, at which point materials previously withheld pursuant to the investigatory exemption may be released." Responding to Mr. Herman's claim to provide redacted versions of the invoices, the Commission indicates that if the records are provided in redacted form, "they would contain no information other than the amounts paid to date," which was provided to Mr. Herman in its August 6th response. Conclusion In its August 15th response, the Commission indicates that it can provide redacted versions of the invoices which were previously withheld under Exemption (f) and a privilege log describing in detail the records redacted under the attorney-client privilege. Accordingly, the Commission is ordered to provide such response 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. I understand a Public Records Division staff attorney contacted your office about this appeal. Sincerely, Rebecca S. Murr~ Supervisor of Records cc: Colman Herman