Ronald Goldman v. Executive Office of Health & Human Services (SPR 20190787)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 1, 2019 SPR19/787 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 O~fice 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, 201 7 and continuing to the date records are sent to [him]." Previous appeals This request was the subject of previous appeals. See SPR18/1736 Determination of the Supervisor of Records (December 4, 2018); SPR19/480 Determination of the Supervisor of Records (March 13, 2019). In my March 13th determination I ordered EOHHS to provide Mr. Goldman with a response in a manner consistent with the order, the Public Records Law and its Regulations. EOHHS responded on March 26, 2019. Unsatisfied with the response, Mr. Goldman petitioned this office, and this appeal, SPRl 9/787 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

Alexander deBlieck SPR19/787 Page 2 May 1, 2019 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. 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. Current appeal EOHHS provided Mr. Goldman records with portions redacted based on the attorney client privilege and Exemption ( c) of the Public Records Law. EOHHS' March 26th response provides additional information regarding its attorney-client privilege claim and the existence of additional records. 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). 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). In my March 13th determination I found EOHHS must establish the existence of an attorney-client relationship for each record. In particular, it was unclear how information redacted within emails from a paralegal constitutes privileged information between an attorney and a client. I also found that 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

Alexander deBlieck SPR19/787 Page 3 May 1, 2019 confidence, and whether the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9. Specifically, it was unclear how certain redactions, such as subject lines and dates, constitute privileged communications. In his current appeal petition Mr. Goldman appears to object to issues related to the attorney-client privilege; specifically, he indicates" ... it is clear that the RAO did not respond to the Supervisor of Records requirement for 'a detailed description of the record, including ... the substance of such record' (G.L. c. 66, lOA(a))." He further indicates "I also request the Supervisor of Records to evaluate the RAO response to the Supervisor's statement that 'it is unclear how information redacted within emails from a paralegal constitutes privileged information between an attorney and a client."' In its March 26th response EOHHS provided responsive records without the subject line and dates redacted. With respect to the detailed description of the records at issue, EOHHS asserts the records include" ... emails in which EOHHS' attorneys provide legal advice regarding EOHHS staffs obligation to respond to questions submitted by the Requester" as well as" ... email communications providing legal advice on how to respond to the Requester's PRR." EOHHS also explains which individuals on the emails are attorneys and/or a paralegal and explains "[t]here has been no waiver of the attorney-client privilege for either category of email records. See gen. Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448 (2007)." With respect to the privileged status of emails from a paralegal, EOHHS indicates "[t]he Commonwealth of Massachusetts recognizes the attorney-client privilege includes the attorney and the representative of the attorney. Mass. G. Evid. § 502(b)(l). A representative of the attorney is defined as 'one used by the attorney to assist the attorney in providing professional legal services.' Mass. G. Evid. § 502(a)(4). A paralegal is a representative of an attorney and works closely with attorneys in providing legal services." You note that in this matter, you as the Records Access Officer and Paralegal, consulted with attorneys" ... and conveyed their legal advice to the client, EOHHS staff, as to how to respond to the Requester's PRR in accordance with the public records laws and regulations." You assert that " ... the email records between the paralegal (me) and the EOHHS attorneys and the paralegal (me) and EOHHS staff concerning the legal advice are properly redacted pursuant to the attorney-client privilege." The names of the authors and recipients, as well as the dates, are evident from the records provided. I find that in light of its March 26th response which clarifies the applicable attorney client relationship, including the role of a paralegal as a representative of the attorneys, and explains that the substance of the redacted portions of the records pertain to providing legal advice regarding EOHHS staff's obligation to respond to questions and a public records request submitted by the requestor, EOHHS has met its burden under G. L. c. 66, § lOA(a) and Suffolk.

Alexander deBlieck SPR19/787 Page 4 May 1, 2019 Existence ofa dditional records In its March 26th response you indicate "EOHHS confirms all responsive records have been provided to the Requester and are enclosed again with this letter." 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of its previous production of records, along with its March 26th response indicating that it provided all responsive records, I find EOHHS has met its burden with respect to this portion of the appeal. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Goldman