Colman Herman v. Executive Office of Housing & Economic Development (SPR 20191150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2019 SPR19/1150 Jonathan M. Cosco, Esq. General Counsel Executive Office of Housing and Economic Development Commonwealth of Massachusetts 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, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested records of "any and all communications related to a Mutual Cancellation of Severance Agreement dated March 22, 2019." The EOHED provided a response on May 31, 2019. Mr. Herman appealed the May 31st response to this office on June 6, 2019 concerning 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. SPR19/1150 Page 2 June 21, 2019 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). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 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 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 beingclaimed."G. L. c. 66, § lOA(a). In the EOHED's May 31st response to Mr. Herman, the EOHED states that they asserted attorney-client privilege for the withholding certain documents. The EOHED explained "The records we withheld consist of ( 1) a series of emails between myself and another attorney attaching and commenting on drafts of the Mutual Cancellation of Severance Agreement, and (2) a series of emails between myself and the secretariat's human resources director, in which I address a legal question." The EOHED stated that the communications were "between counsel, or between counsel and client, regarding legal matters." The EOHED also attached in the response provided to Mr. Herman on May 31st a privilege log containing the authors, recipients, dates, and substance ofthe withheld records as well as the grounds for withholding or redacting. Conclusion In light of the EOHED's May 31st response and privilege log, I find the EOHED has met its burden to wihhold the information under the attorney-client privilege. Sincerely, ~M~ Supervisor of Records cc: Colman Herman