Jamie Folk v. Department of Public Health (SPR 20191009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 6, 2019 SPR19/1009 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Jamie Folk appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Folk requested "all documentation which may include, but is not limited to, emails, reports, video and audio recordings associated with Governor Patrick's Outreach Plan Hinton State Lab Investigation." The Department responded to his request by providing some responsive records and withholding others under the common law attorney-client privilege and the attorney work product doctrine. 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, § 1O (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

Helen Rush-Lloyd SPR19/1009 Page 2 June 6, 2019 Common law attorney-client privilege; attorney work product doctrine In its response, the Department indicates it has withheld approximately 325 records, more specifically, 144 emails and 181 attachments. The Department indicates that these records "were withheld to ensure privileged attorney-client communications, protected attorney work product doctrine and/or subject to the common interest doctrine." The Department explains that "[f]or instance, confidential emails including communications with/between the Department attorneys and attorneys from other agencies as well as other DPH employees concerning the Drug Lab Outreach Plan, including, but not limited to DPH attorneys' legal advice and/or materials related to potential or pending litigation, were withheld on the basis of attorney-client privilege." The Department explains that "certain records are being withheld because the attorney client privilege and/or work product doctrine are to and/or from the following Department attorneys: Donna Levin; Steve Chilian; Elizabeth Scurria Morgan; Alison Melhman; Pricilla Fox; Susan Stein; and Lisa Snellings. Additionally, certain other records containing attorney client/work product material are being withheld pursuant to the common interest doctrine as those emails are to and/or from the Executive Office of Health and Human Services (EOHHS) attorneys Maureen McGee, Mark A. Reilly and Carrie Wicker; Governor's Office attorneys Douglas Rice and David Young; and the Executive Office of Public Safety and Security attorney, John Cronin." The Department further explains that "certain responsive records, including drafts of Outreach Plans, were withheld on the basis of the attorney work product doctrine ... The records were prepared by or at the request of agency attorneys and express legal opinions, mental impressions, conclusions, theories, or strategies in anticipation of litigation." 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-

Helen Rush-Lloyd SPR19/1009 Page 3 June 6, 2019 client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. It should be noted that the Supreme Judicial Court (SJC) opined on this issue 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. With respect to the attorney-client privilege claim, I find the Department has not met its burden of demonstrating that the responsive records may be withheld from disclosure under the attorney-client privilege because the Department has neither provided an explanation regarding whether the privilege has been waived, nor has it provided a detailed index in accordance with G. L. .c. 66, § lOA(a). 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). Further, the Department has not demonstrated how the requested documents were prepared in anticipation of litigation with respect to its work product doctrine claim. The Department must clarify these matters. Order Accordingly, the Department is ordered to provide Mr. Folk 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: Jamie Folk