Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20181241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 30, 2018 SPRlS/1241 Natalie B. Sawyer General Counsel 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); SPRl 8/889 Determination of the Supervisor of Records (July 2, 2018); and SPRl 8/1072 Determination of the Supervisor of Records (August 2, 2018). I closed SPRl 8/1072 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 August 2nd determination, the Division provided a response on August 16, 2018, which provides additional information as to whether the attorney-client privilege claim regarding one of the emails has been waived. Unsatisfied with the Division's response, Mr. Herman petitioned this office and this appeal, SPR18/1241, 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, Esq. SPR18/1241 Page 2 August 30, 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, § 1 O(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. 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. The Division's August 16th response In its August 16, 2018 response, the Division states that the January 10th email, which contains "confidential information regarding ongoing lease negotiations and strategy for the Mystic Wellington boathouse," was sent from its Deputy General Counsel to its Project

Natalie Sawyer, Esq. SPR18/1241 Page 3 August 30, 2018 Manager. The Division also indicates that its Deputy Director, Deputy General Counsel, and contracted surveyor were carbon copied on this particular email. The Division explains that the contracted surveyor " ... provided survey services to DCAMM related to the Mystic Wellington boathouse. [He] is an agent of DCAMM, acting on its behalf and under its control." The Division contends that "[b]ecause the January 101 h Email was shared with [the contracted surveyor] in his capacity as an agent of DCAMM, and was necessary to facilitate the communications between DCAMM and its counsel; the attorney-client privilege has not been waived. See, e.g., Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., Inc., 449 Mass. at 609,616 (2007) (privilege protects 'statements made to or shared with necessary agents of the attorney or the client, including experts consulted for the purpose of facilitating the rendition of such advice')." Whereas the Division has indicated that the contracted surveyor is an agent acting on its behalf and under its control, and provides survey services to the Division regarding its ongoing lease negotiations, I find the Division has demonstrated that the privilege has not been waived and has met its burden to withhold the responsive email record under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman