Michael P. Dreslinski v. Attorney General's Office (SPR 20191680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor cf Records September 3, 2019 SPR19/1680 Lorraine A.G. Tarrow, Esq. Assistant Attorney General/Records Access Officer Attorney General's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Michael Dreslinski appealing the response of the Office of the Attorney General (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.B,.. 32.08(1). Specifically, on May 8, 2019, Mr. Dreslinski requested the following records: "(l) All policies, procedures, practices regarding the handling of Litigation Hold or Document/Evidence Preservation notices/requests received by Attorney General's Office; (2) All record(s) defined by G.L. c. 4, §7(26), created, sent/received regarding the March 15, 2019 Litigation Hold/Document Preservation request of Michael P. Dreslinski, received by the Attorney General's Office Executive Bureau on or about March 18, 2019, including but not limited to email/e lectronic communications." The Office responded on May 28, 2019, providing portions of the records and denying access to other responsive records pursuant to Exemptions (b) and ( d) of the Public Records Law, as well as the common law attorney-client privilege. G. L. c. 4, § 7(26)(b), (d). Unsatisfied with the Office's response, Mr. Dreslinskipetitioned this office and this appeal, SPR19/1680, was opened as a result. 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 fonn 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). 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

Lon·aine A.G. Tarrow, Esq. SPR19/1680 Page 2 September 3, 2019 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, § IO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 ( 1995) (c ustodian 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 Office's May 281 response ,, In its May 28, 2019 response, with respect to request 1, the Office asserts that" ... records comprising [its] Litigation Hold policy are privileged attorney-client communications that are protected from disclosure." The Office explains that" ... these records are memoranda from the General Counsel's Office which provides legal counsel to the entire [Office], that offer legal advice concerning the practices the [Office] must follow to preserve infonnation relating to pending or potential litigation." The Office cites Suffolk to support its position. The Office further indicates that the records are also exempt under Exemptions (b) and ( d), because they " ... (b) relate solely to the internal practices of the [Office], the disclosure of which may inhibit the proper performance of necessary government functions; and ( d) are intra-agency memoranda relating to policy positions continually being developed and implemented by the [Office]." With respect to request 2, the Office provides certain records and indicates that it withheld 2 email records under the attorney-client privilege, because they" ... are privileged attorney-client communications that are comprised entirely of legal advice sought for and given among [the Office] staff and the General Counsel's office concerning [its] Litigation Hold policy." The Office asserts that the records are also withheld under Exemptions (b) and (d). Exemption (b) Exemption (b) permits the withholding ofrecords that are: Related solely to internal personnel rnles and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper perfonnance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling· and maintaining for public inspection materials in which the public cannot

Lorraine A. G. Tan-ow, Esq. SPR19/1680 Page 3 September 3, 2019 reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnfo1mation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, ifreleased, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Exemption (d) Exemption ( d) allows the withholding of: inter-agei1cy 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 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 Executive 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) (putely · factual matters used in the development of government policy are subject to disclosure). Based on the Office's response, although it claims that portions of the records are exempt from disclosure, because they" ... (b) relate solely to the internal practices of the [Office], the disclosure of which may inhibit the proper performance of necessary government functions; and (d) are intra-agency memoranda relating to policy positions continually being developed and implemented by the [Office][,]" I find the Office must provide additional infonnation regarding how disclosure of the records would impact the proper perfornrnnce of its necessary governmental functions" as required by Exemption (b ), as well as the nature of the policy positions that are being developed and how disclosure would taint its deliberative process under

Lonaine A.G. Tarrow, Esq. SPR19/1680 Page 4 September 3, 2019 Exemption ( 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. 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). Although certain information from the Office's General Counsel's office may fall within the attorney-client privilege, as indicated above, I find the Office must provide a privilege log in accordance with the Public Records Law. Conclusion Accordingly, I find that the Office is to provide Mr. Dreslinski with a supplemental response in a manner consistent with this detennination, 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. Munay Supervisor of Records cc: Michael Dreslinski