Colman Herman v. Executive Office of Housing & Economic Development (SPR 20191523)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 14, 2019 SPR19/1523 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, on June 16, 2019 Mr. Herman requested "hard copies and electronic copies of any and all communications related to [identified individuals] signing a 'Severance Agreement and Release' dated February 20, 2019." EOHED provided Mr. Herman with a response on July 30, 2019 which Mr. Herman appealed to this office on July 31, 2019. 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, § 1O A( 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 p01iion 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 CM.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 Cosco, Esq. SPR19/1523 Page 2 August 14, 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 supp01i 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 being claimed." G. L. c. 66, § lOA(a). In EOHED's July 30 111 response to Mr. Herman, you assert "the second category of documents that are responsive to [Mr. Herman's] request are emails that are subject to attorney client privilege. These emails and their attachments are exempt from disclosure under the Public Records Law because they consist solely of communications between counsel and client regarding legal matters." EOHED explains that the "emails in question are between [EOHED's General Counsel] and other EOHED officials and relate to the content of the Severance Agreement and Release, or other legal matters pertaining to the Severance Agreement and Release." To suppmi its claim of attorney-client privilege with respect to the withheld records, EOHED must provide an index containing detailed descriptions of the records, 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, EOHED must clarify whether the privilege as to these communications has been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9. Mr. Herman also requested a search of "personal email accounts and text messages for responsive records." It is unclear if EOHED possesses records responsive to Mr. Herman's request. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). Specifically, EOHED must explain whether the requested records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records were destroyed, EOHED must demonstrate whether it followed proper records retention protocol.

Jonathan Cosco, Esq. SPR19/1523 Page 3 August 14, 2019 Conclusion Accordingly, EOHED is ordered to provide a response consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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