Ronald Goldman v. Executive Office of Health and Human Services - MassHealth Privacy Office (SPR 20190480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 13, 2019 SPR19/480 Alexander deBlieck Public Records Paralegal Executive Office of Health and Human Services One Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Ronald Goldman appealing the response of the Executive Office of Health and Human Services (EOHHS) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Goldman requested "a copy of all internal and external (received by and sent to an outside office by MassHealth) communications, notes, and documents directly or indirectly related to [his] communications with MassHealth about its payments for male infant circumcision, starting with [his] letter to Daniel Tsai on May 1, 2017 and continuing to the date records are sent to [him]." Previous appeals This request was the subject of a previous appeal. See SPRl 8/1736 Determination of the Supervisor of Records (December 4, 2018). I closed SPRl 8/1736 upon bein~ notified that EOHHS provided a supplemental response to Mr. Goldman on December 4t . Unsatisfied with the response, Mr. Goldman petitioned this office, and this appeal, SPRl 9/480 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). 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 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

Alexander deBlieck SPR19/480 Page 2 March 13, 2019 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. Current appeal In its December 4th response EOHHS explained that the records Mr. Goldman received" . . . were reviewed and redacted based on Attorney-Client Privilege and private emails addresses were redacted under G. L. c. 4, § 7 (26)(c)." Attorney Client Privilege 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); 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). Attorney-client privilege 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, § lOA(a). Subsequent to the opening of this appeal, EOHHS provided a supplemental response on March 12, 2019. In this response EOHHS asserts "[e ]mail communications between EOHHS attorneys and EOHHS employees concerning legal advice have been redacted. Such emails constitute attorney client communications and are protected from public disclosure by the attorney-client privilege. There has been no waiver of that privilege. See gen. Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444,448 (2007). Note the following individuals are EOHHS attorneys: Sharon Boyle, Stephanie Kahn and Patricia Scanlan." You also note that " ... these redactions were and are appropriate, and in accordance

Alexander deBlieck SPR19/480 Page 3 March 13, 2019 with Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448-50 (2007). Contrary to the Requester's assertion, there is no conflict of interest where an EOHHS attorney provides legal advice to another EOHHS employee. This is the exact type of relationship the attorney client privilege protects. See gen. Suffolk Construction Co., Inc., supra." Upon review of the records provided, EOHHS did not redact greetings and salutations, as well as certain header information. Further, the names of the authors and recipients are evident. However, EOHHS must establish the existence of an attorney-client relationship for each record; in particular, it is unclear how information redacted within emails from a paralegal constitutes privileged information between an attorney and a client. EOHHS must clarify how the redacted portions of the emails are communications 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, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9. Specifically, it is unclear how certain redactions, such as subject lines and dates, constitute privileged communications. EOHHS may elect to provide this office with umedacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide this office a response with further information relating to the grounds upon which the attorney-client privilege is being claimed for each record as contemplated above and in G. L. c. 66, § 1 OA(a). Existence ofa dditional records In his appeal petition Mr. Goldman indicates that he did not receive an October 25, 2017 email that he believes should have been included with the responsive records. He notes that EOHHS' response" ... calls for diligent efforts on the part of the Supervisor of Records to achieve full disclosure." In its March 12th response EOHHS indicates "[u]pon receiving the Requester's appeal, EOHHS contacted EOTSS to confirm the search terms applied to collect the responsive electronic records." You note that EOTSS collected 23 additional records with these new search terms." You indicate that "EOHHS did not withhold any responsive records captured by the search parameters provided to EOTSS. Instead, EOHHS redacted the text of the privileged communications, but did not redact the To, From, CC, and Subject fields. EOHHS' redactions are in accordance with 950 CMR 32.06(3)(d)." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of the issues raised in Mr. Goldman's appeal I find EOHHS must confirm whether it possess any additional responsive records.

Alexander deBlieck SPR19/480 Page4 March 13, 2019 Conclusion Accordingly, EOHHS is ordered to provide Mr. Goldman with a response 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, ~ Rebecca S. Murray Supervisor of Records cc: Ronald Goldman