Michael Sacco, Esq. v. Public Employee Retirement Administration Commission (SPR 20181259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 4, 2018 SPR18/1259 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 ofM ichael 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, § 1O A; 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 Contributory Retirement 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 Appeal Board, et al., Suffolk Superior Court, Civil Action No. 1584CV01430." Previous appeal This request was the subject of previous appeals. See SPR18/939 Determination of the Supervisor of Records (July 10, 2018); SPR18/1130 Determination of the Supervisor of Records ( August 13, 2018). In my August 13th 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 August 17, 2018. Attorney Sacco appealed and SPR18/1259 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, § 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). 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

John Parsons, Esq. SPR18/1259 Page 2 September 4, 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, § 1O (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. Current appeal In a June 7, 2018 response the Commission indicates "[a]ll documents responsive to [Attorney Sacco's] request have been withheld pursuant to attorney-client privilege under the provisions of G.L. c. 4, § 7, G.L. c. 66, §§ lOA and lOB. 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, § 3, and discuss litigation strategy and are thus protected by the attorney client privilege exemption to the Public Records law." In a July 20th response 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, § lOA(a). In my August 13th determination I found the Commission must provide additional information regarding the nature of the attorney-client relationship between the Commission and the Office of the Attorney General (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. August I ih response ih In its August 1 response the Commission asserts that with respect to the OAG's role as the Commission's attorney, "[p]ursuant to state law and the MA Constitution, the Attorney General ('OAG') is the attorney for the Commonwealth, and its agencies. (G.L. C. 12, s.3). The Commission explains that the OAG requires the state agency to provide the rationale for why the action should be commenced, including "a detailed summary of why the action should be filed, its legal arguments, etc." You claim " [t ]his document is a classic confidential document between an attorney and its client, presenting not only the legal rationale for pursuing the action, but also the arguments the agency client would advance if the action proceeded." The Commission asserts that "[t]his process of discussing one's legal position, strengths and weaknesses, strategy, etc. is clearly the seeking of 'legal advice', the question presented to PERAC in this latest correspondence." The Commission also addresses the issue of the representation of both PERAC and the Contributory Retirement Appeal Board (CRAB). You note that "[w]hile PERAC agrees that this

John Parsons, Esq. SPR18/1259 Page 3 September 4, 2018 is an unusual situation, it is not uncommon, and further, the OAG has established a process to ensure that both state agencies are able to communicate confidentially with the OAG in such a scenario. (We note for the record that the OAG should be primarily consulted on how this process works in practice, and further because they also have communications that are generated during this process)." More specifically, you indicate that "[i]t is our understanding that, in a matter such as this involving two state agencies, the OAG's Solicitor acts as a 'firewall', assuring that both state agencies are able to avail themselves of legal representation, with the assurance that its position/arguments, etc. will not be known to the other state agency, and will be analyzed independently of the other agency's position." You also posit "[w]hile this action was ultimately devolved to PERAC to handle, at the time that we were seeking to gain permission to proceed, there can be no question that the OAG was our attorney, as required by state law." The Commission indicates that for these reasons, "we believe the records at issue are and should be protected by attorney-client privilege and exempt from disclosure." In light of its previous responses, and its August 1i h response that provides additional information regarding the nature of the attorney-client relationship between the Commission and the OAG, and also sheds light on the substance of the records, I find the Commission has met its burden to withhold the records at issue under the attorney-client privilege. See G. L. c. 66, § 1O A(a); Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007). Rebecca S. Murray Supervisor of Records cc: Michael Sacco, Esq.