Hannah Reale v. Operational Services Division (SPR 20191562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records August 20, 2019 SPR19/1562 William M. McAvoy, Esq. Deputy Assistant Secretary/Chief Legal Counsel Operational Services Division One Ashburton Place, Room 1017 Boston, MA 02108 Dear Attorney McAv oy: I have received the petition of Hannah Reale of WGBH appealing the response of the Operational Services Division (Division) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 17, 2019, Ms. Reale requested the following records: "[1} A copy of the December 17, 2015, email by William McAvoy with the subject line 'Updated regulations' and all attachments. It was sent to [six identified individuals]; and [2] A copy of the December 17 , 2015, email from [a n identified individual] to William McAvoy (sent in response) with subject line 'RE: Updated regulations' and all attachments." The Division provided a response on July 31, 2019, denying access to responsive records pursuant to Exemption (d) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(d). Unsatisfied with the Division's response, Ms. Reale petitioned this office and this appeal, SPRl 9/1562, was opened as a result. While this appeal was pending, the Division provided a supplemental response dated August 19, 2019. Tile 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

William McAvoy, Esq. SPR19/1562 Page 2 August 20, 2019 order to withhold a requested record. G. L. c. 66, § lO(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division's July 3P1 response In its July 31, 2019 response, the Division, citing Suffolk, contends that " ... these communications are protected by attorney-client privilege .... " The Division fmiher states that " ... these records deal with deliberative and policy-based communications between [the Division's] staff concerning tentative, unfinished, and non-promulgated regulations. Public Records Law Exemption D provides a limited executive privilege for policy development. It applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency." The Division's August 191 supplemental response " In its August 19th response the Division contends that " ... even if portions of the emails or any attachments may have been disclosed in relation to litigation[,]" Exemption (d) still applies. The Division states that "[u]pdated regulations discussed in the communications and any attachments have not been officially implemented and remain under ongoing review and contemplation, which is clearly exempt from public disclosure pursuant to [Exemption (d)]." Therefore, [the Division] may withhold production of the complete records even if Ms. Reale has portions of them already." The Division also reiterated its position to withhold responsive email records under the attorney-client privilege and explains that "[t]he communications and attachments were sent in the course of discussing legal implications related to policy development." The Division cites Suffolk to support its position. Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based

William McAvoy, Esq. SPR19/1562 Page 3 August 20, 2019 G. L. c. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In her appeal petition, Ms. Reale claims that "[t]he email attachments in question are part of a past policy discussion, and resulting policy has long since been implemented. There is no ongoing deliberative process." In the Division's August 19th supplemental response, the Division indicated that the records in question relates to discussions pertaining to updated regulations that have not been implemented and remain under ongoing review. Despite the Division's indication that discussions pertaining to updated regulations remain ongoing, it is unclear how disclosure of the records would taint the deliberative process. Further, it remains unclear how the records at issue may be withheld in their entirety. See Reinstein·v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). The Division must clarify this issue. The Division is also reminded that "reasonably completed factual studies or reports on which the development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, § 7(26)(d). Common law 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. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444,450 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). 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.

William McAvoy, Esq. SPR19/1562 Page 4 August 20, 2019 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, § IOA(a). Based on the Division's response, I find the Division has not established the existence of an attorney-client relationship under these circumstances. The Division did not explain how the records are communications received during the course of the client's search for legal advice. Further, the Division did not explain how the privilege has not been waived, especially in light of the fact that Ms. Reale claims in her petition that the privilege has been waived because" ... the contents of the emails and portions of the attachments were previously disclosed in Federal Concrete vs. Executive Office ofA dministration and Finance et al (2018)." See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (disclosing attorney-client communications to a third party generally undermines the privilege). The Division must first apply the three-step test in Suffolk to establish that the records fall under the protection of the attorney-client privilege and cannot be disclosed to the public. In addition, although the names of the author and recipients, as well as the dates of the records at issue are evident from the wording of Ms. Reale's request, I find the Division must provide a privilege log in accordance with the Public Records Law as noted above. Specifically, the log must include the substance of the record and the grounds upon which the attorney-client privilege is being claimed. Consequently, I find the Division did not meet its burden of specificity in claiming the attorney-client privilege to withhold records from disclosure under the requirements of the three-part test in Suffolk and the Public Records Law under G. L. c. 66, § IOA(a). Conclusion Accordingly, the Division is ordered to provide Ms. Reale with a response to the request, provided in a mam1er 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, ~r~ Supervisor of Records cc: Hannah Reale Christopher Burell