Colman Herman v. Executive Office of Housing & Economic Development (SPR 20190900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2019 SPR19/0900 Jonathan M. Cosco, Esq. General Counsel Executive Office of Housing and Economic Development One Ashburton Place, 21st Floor Boston, MA 02114 Dear Attorney Cosco: I have received the petition of Colman Herman appealing the response of the Executive Office of Housing and Economic Development (EOHED) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "hard copies and electronic copies of any and all communications ... " related to two identified individuals on March 22, 2019. The EOHED responded to Mr. Herman's request by providing redacted responsive records and withholding others claiming the redacted portions and the withheld records fall within the common law attorney-client privilege. 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 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. 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

Jonathan M. Cosco, Esq. SPR19/0900 Page 2 May 20, 2019 Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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. See Suffolk, 449 Mass. at 450 n.9; 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). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. The EOHED indicates that with respect to the withheld records the "emails consist of (1) a series of emails between [a n identified EOHED employee] and another attorney attaching and commenting on drafts of the Mutual Cancellation of Severance Agreement, and (2) a series of emails between [an identified EOHED employee] and [an identified individual], the secretariat's human resources director, in which [an identified EOHED employee] address a legal question raised by [the identified "human resources director"]. These emails and their attachments are exempt from disclosure under the Public Records Law because they consist solely of communications between counsel, or between counsel and client, regarding legal matters." With respect to the redacted portions of the provided responsive records, the EOHED indicates that such "redaction (which appears in multiple emails) characterizes the privileged matters referenced above, and as such falls squarely within the scope of the attorney-client privilege." Despite the EOHED's response, it has not established the existence of an attorney-client relationship under these circumstances. The EOHED is advised that in order to meet its burden of specificity in applying the common law attorney-client privilege to withhold records, it must provide "a detailed description of the record[s], 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). While the EOHED indicates that the records are "consist solely of communications between counsel, or between counsel and client, regarding legal matters" and provides the names of the authors and recipients in general terms, the EOHED has not included the dates of each email nor a description of the substance of each email and the

Jonathan M. Cosco, Esq. SPR19/0900 Page 3 May 20, 2019 grounds upon which the attorney-client privilege is being claimed as required by G. L. c. 66, § lOA(a). Additionally, the EOHED has not addressed whether the privilege has been waived nor has it identified the specific records that it believes fall into the attorney client privilege. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Order Accordingly, EOHED is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Colman Herman