Frank L. Stanley v. Office of the District Attorney - Northwestern District (SPR 20181286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10,201 8 SPRl811286 Cynthia M. Von Flatern, Esq. Assistant District Attorney Office of the District for the Northwestern District One Gleason Plaza Northampton, MA 0 1060 Dear Attorney Von Flatern: I have received the petition of Frank Stanley appealing the response of the Office of the District Attorney Northwestern District (DAO) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Mr. Stanley requested records regarding the Hampshire County Superior Court Case No. 12-008 and Department of State Police Case No. 2012-10 9- X103-0118, specifically: 1. Departmental emails; 2. OS Triage, Encase, FTK, Autopsy 3 and any other forensic records in connection with thumb drive, Dell Inspiron Laptop, Dell Desktop, ASUS Netbook; 3. Property transfer receipts from Town of Hadley Police Department to the Department of State Police (State Police); transfer receipts from Sergeant Thomas Bakey to Trooper Gavioli; any other transfer receipts of thumb drive and computers; 4. Search warrants procured by the State Police and/or District Attorney's Office for thumb drive and computers; 5. Color copies of digital photos on thumb drive (MSP Item 2-1 USB Flash Drive 8GB Sandisk Cruzer), of the following: (a) ClIraql61886-1551756429469 11018 83652-1607606 -6 1845.n.jpeg; (b) CIIraqlFrank, Mary & ~ a m i l ~ . G ~ (c) CIIraqlJohn, Wendy & Family & Frank.jpg Prior appeal The responsive records were the subject of a prior appeal. SPRl811137 Determination of the Supervisor of Records (Supervisor) (August 13,2018 ). 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

Cynthia M. Von Flatern, Esq. Page 2 September 10,2018 In a June 29,201 8 response, the DAO states, "[tlhe single public record that exists in our records is a receipt for evidence dated 07/19/2012." This record responsive to Request No. 3 was provided to Mr. Stanley. As communicated to this office prior to my August 1 3d~ete~rm ination on SPR1811137, the DAO indicated that it would contact the Belchertown District Court Clerk's Office to obtain the search warrant records. On August 17th,t he DAO provided the search warrant dated January 11 ,201 2 along with the Affidavit in Support of Application for Search Warrant and return on the warrant. (Request No. 4). Since this original appeal and the current appeal were opened, Mr. Stanley requested any other search warrants that the DAO may have. In a September 7th letter to this office, the DAO explained that it has no further search warrants in the Northwestern DAO Office's possession, custody and control. The DAO also informed Mr. Stanley that a search warrant was authorized by the Eastern Hampshire District Court on December 15,2011. The DAO 'sA ugust 8,2018 and September fh supplemental responses While the DAO provided June 29tha nd August gth responses to Mr. Stanley's Request No. 2 (forensic evidence) and Request No. 5 (digital photos), the DAO informed this office in an August 9tht elephone conversation, and its September 7thl etter, that the Department of State Police (Department) conducted the investigation, and has retained possession, custody and control of the forensic evidence including the digital photos since the investigation of Mr. Stanley and his incarceration. Therefore, the DAO explained that it is not in possession, custody and control of the forensic evidence, including photos. Mr. Stanley should be aware th time of the request." See G. L. c. 66, 5 lO(a)(ii). Where certain of the records are in the possession, custody and control of the Department, the DAO has met its burden in responding to Mr. Stanley's Requests Numbered 2 and 5. The Department has also met its burden of responding to Mr. Stanley's Request Numbers 3 and 4. It is my understanding that Mr. Stanley has also made a request to the Department for the remaining photos and the forensic evidence. Common law attorney-client privilege - Emails (Request No. 1) The DAO is withholding the email communications under the common law attorney- client privilege. However, the DAO's June 29tha nd August gth responses regarding the emails did not meet the DAO's burden of specificity in claiming attorney-client privilege to withhold the emails under both the Suffolk case and the Public Records Law. G. L. c. 66, 5 10A(a). There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for the purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg, Educ. Center, Inc. v. Comm'r of the Dept. of Mental Retardation (No. I), 424, Mass. 430 (1997).

Cynthia M. Von Flatern, Esq. Page 3 September lO,20 18 The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Electric Co., 414 Mass. 609, 614-615 (1 993). The Court affirmed the general rule that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1 83 1). The Court, however, admonished that a governmental entity has the burden of proving a. the existence of the attorney-client privilege. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the attorney~clientprivilegehatsh e burd&~osh~twhe privilege applies). In order to properly claim the common law attorney-client privilege, not only must the records custodian comply with the three-step test in Suffolk, but must also comply with the requirements in the Public Records Law to withhold records based on the claim of attorney-client privilege. The Public Records Law requires that 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, 5 10A(a). In a September 7tht elephone conversation with a Public Records Division staff attorney and in its September 7thl etter to this office and Mr. Stanley, the DAO indicates that it will provide Mr. Stanley with a privilege log to meet its burden of specificity in claiming the attorney-client privilege to withhold the emails under the requirements in both Suffolk and G. L. c. 66, 5 lOA(a).

Cynthia M. Von Flatern, Esq. Page 4 September 10,201 8 Work product - Emails (Request No. 1) In its August 8thr esponse, the DAO has also claimed that emails are not public record as they constitute work product, citing DaRosa v. New Bedford, 471 Mass. 446 (2015). It is unclear from the DAO's September 7thr esponse whether the DAO is still claiming that certain of the emails may be withheld under the holding in DaRosa. In DaRosa, the SJ C concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is Id. reasonably completed, where it is interwoven with opinions or analysis leading to opinions. However, the DAO has neither claimed Exemption (d) to withhold the email communications, nor demonstrated how it may also withhold the emails under the work product doctrine in DaRosa. Therefore, I find that the DAO did not meet its burden in claiming that certain of the emails may be withheld as work product under Exemption (d) or the work product doctrine described in DaRosa. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the a p p l i ~ Ea~n efxe mption or privilege. G. L. c. 66, 9 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The DAO did not meet its burden of demonstrating how the emails communications may be withheld See under the common law attorney-client privilege. Suffolk Constr. Co., Inc., 449 Mass. 444, 450; see also G. L. c. 66, 5 10A(a). Conclusion Given that the DAO did not provide a privilege log to support its attorney-client privilege and work product claim to withhold the emails, I find that the DAO did not meet its burden of specificity in withholding records. Accordingly, the DAO is ordered to provide Mr. Stanley with a privilege log to support its attorney client-privilege claim and its work product claim, in a manner consistent, this order, the Suffolk decision, 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.

Cynthia M. Von Flatern, Esq. Page 5 September 10,201 8 Sincerely, V Rebecca S. Murray Supervisor of Records cc: Frank Stanley