Michael Damiano v. Executive Office of Health & Human Services (SPR 20190968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2019 SPR19/968 Alexander D. deBlieck Records Access Officer Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Michael Damiano of Boston Magazine 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). Mr. Damiano requested: "[Part A] Specifically, I'm requesting any and all correspondence received by or sent by Elissa Snook referring to or concerning Paul Gitlin or Michael Medlock between November 15, 2018 and December 16, 2018; and [Part B] I'm also requesting any and all correspondence received by or sent by Elissa Snook referring to or concerning Michael Medlock between January 1, 2018 and February 16, 2018." In April 2019, EOHHS provided Mr. Damiano with records responsive to his March 27, 2019 request. After review of the records, in particular some redacted under the common law attorney-client privilege, Mr. Damiano petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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 D. deBlieck SPR19/968 Page 2 May 31, 2019 order to withhold a requested record. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). EOHHS's April 9, 2019 response EOHHS's April 9th response indicates, "[p] lease note EOHHS continues to process your request to gather potentially responsive records. EOHHS is unable to provide a complete response by April 10, 2019 ... EOHHS estimates a response will issue by April 18, 2019." After receipt of the records, Mr. Damiano petitioned the Supervisor based on EOHHS's redaction of emails under the common law attorney-client privilege. To the best of my knowledge, EOHHS did not provide a response detailing its attorney-client privilege claim for certain emails. Common law attorney-client privilege In his petition to the Supervisor, Mr. Damiano explains, '"[o] n Pages 71 and 72 of 'Elissa Snook-Part A' emails, [EOHHS] cited attorney-client privilege to justify redacting most of the contents of several emails. The redacted emails are part of a thread that began with an email from David Markowitz to Sharon Torgerson (pg. 72)." Mr. Damiano also indicated that the emails are dated December 13, 2018 and December 14, 2018. EOHHS claimed the common law attorney client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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 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. 1), 424 Mass. 430 (1997). 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., 449 Mass. 444. 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 Elec. Co., 414 Mass. 609, 614-615 (1993). 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

Alexander D. deBlieck SPR19/968 Page 3 May 31, 2019 Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. 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 ofElec. 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-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. 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 "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, § 1 OA(a). In a May 31, 2019 supplemental response, EOHHS established the existence of an attorney-client relationship with respect to the withheld communications and confirmed the attorney-client privilege had not been waived. Further, EOHHS provided sufficient additional information regarding communications withheld under the attorney-client privilege. See G. L. c. 66, § IOA(a). Conclusion In light of its May 31st response, I find EOHHS has established that the attorney-client privilege allows for the withholding of the 3 responsive emails. Accordingly, I will consider this appeal closed. Sincerely, ~ u r r ~ Supervisor of Records cc: Michael Damiano