Ronald Goldman v. Executive Office of Health & Human Services (SPR 20190803)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2019 SPR19/803 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Goldman requested "all public records associated with the 12/27/18 EOHHS response to my 12/20/18 public records request." EOHHS responded on January 22, 2019 by providing records with portions redacted under Exemptions (c) of the Public Records Law as well as the attorney-client privilege and work product. G. L. c. 4, § 7(26)(c). 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, § lO(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. Appeal In its January 22nd response EOHHS explained that it redacted personal contact information under Exemption ( c) as well as communications under the attorney-client privilege. 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 SPR19/803 Page 2 May 3, 2019 EOHHS also withheld drafted response letters under the "attorney work product doctrine." It appears Mr. Goldman objects to the portions of the response pertaining to attorney-client privilege and work product. 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 its January 22nd response EOHHS asserts" ... attorney client communications are also exempt from disclosure under Suffolk Co,nstruction Co., Inc. v. Division ofC apital Asset Management, 449 Mass. 444 (2007)." · In his appeal petition Mr. Goldman indicates "[t]he RAO must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. In addition, it appears that some records were withheld that were not direct communications with an attorney." He further asserts "[i]n connection with withheld records, the RAO did not respond to the requirement for 'a detailed description of the record, including ... the substance of such record' (G.L. c. 66, lOA(a))." Mr. Goldman also submitted an email on May 2, 2019 in further support of his position. Upon review of the records provided, EOHHS did not redact greetings and salutations, as well as header information. Further, the dates and 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 must address Mr. Goldman's assertion that "it appears that some records were withheld that were not direct communications with an attorney." EOHHS must also 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

Alexander deBlieck SPR19/803 Page 3 May 3, 2019 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. · EOHHS may elect to provide this office with unredacted copies of the responsive records for in camera review as provided for in G. L. c. 66, § lOA(a). However, if it does not elect to do so, it must provide this office a response with further information relating to the substance of the records and grounds upon which the attorney-client privilege is being claimed for each record as contemplated above and in G. L. c. 66, § lOA(a). Work product EOHHS indicates" ... drafted response letters are redacted under the attorney work product doctrine." It should be noted that the Supreme Judicial Court (SJC) opined on the issue of work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC 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 reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. I find that EOHHS has not established how the drafted response letters constitute work product that may be withheld as contemplated in DaRosa; in particular, it is unclear how the responsive records were prepared in anticipation of litigation or for trial. 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 ari electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Goldman