Kevin Norris v. Executive Office of Public Safety and Security - Massachusetts Parole Board (SPR 20192106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records October 29, 2019 SPR19/2106 Shara Benedetti, Esq. Deputy General Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Benedetti: I have received the petition of Kevin Norris appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Norris requested 7 categories ofrecords including identified policies, letters, and emails, as well as an Annual Statistical Report and settlement agreement. Previous appeal This request was the subject of a previous appeal. See SPRl 9/1845 Determination of the Supervisor of Records (September 24, 2019). In my September 24111 determination I ordered the Board to provide Mr. Norris with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Board responded on October 3, 2019. Mr. Norris appealed and SPR19/2106 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 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, § 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 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

Shara Benedetti, Esq. SPR19/2106 Page 2 October 29, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, Mr. Norris's purpose in making the request has no bearing on the public status of any existing responsive records. Current appeal The Board initially responded on August 30, 2019 by providing certain records, indicating it did not possess particular records, and denying access to others. In my September 24th determination I found the Board must explain whether the responsive "Parole Policy/CMR" is within the Board's possession, custody, or control. I also found it was uncertain which specific responsive emails the Board possesses and that the Board .had not met its burden of demonstrating how the responsive emails, in their entirety, were exempt from disclosure under the exemptions cited. Further, I indicated that the Board must provide a detailed description of the withheld emails at issue as required by G. L. c. 66, § IOA(a). With respect to the settlement agreement at issue, I found the Board must explain whether the responsive settlement agreement was within the Board's possession, custody, or control. In its October 3rd response the Board provided Mr. Norris a copy of a "CMR." The Board withheld responsive emails under Exemptions (a), (c), and (f) of the Public Records Law. The Board also withheld the responsive settlement agreement as work-product and/or attorney-client privileged and cites Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). Mr. Norris objects to the withholding of these emails and settlement agreement. Emails Mr. Norris requested "[a]ll the emails from Parole officers Kevin Devlin, Sue Olson, and Lydia Iraola, regarding/mentioning my name, from January 2019 until August 2019." In its October 3rd response the Board describes responsive emails from these 3 individuals that it is withholding . . In his appeal petition Mr. Norris indicates "I am enclosing proof that I was allowed access to [e ]mails of parole officials before, and this defeats any exemption argument. Furthermore, the [Board] cannot invoke the emails are protected by CORI; when it[']s my personal CORI information, and/or a [p]rivacy exemption privacy or investigation exemption."

Shara Benedetti, Esq. SPR19/2106 Page 3 October 29, 2019 In camera inspection ofr esponsive emails In order to analyze the legal basis of the Board's position regarding these emails, it is the finding of this office that an in camera inspection of an unredacted copy of a representative sample of the responsive emails would facilitate a deterniination as to the applicability of any exemption claims made by the Board. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations) . .R ecords are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Settlement agreement Mr. Norris requested "[t]he Settlement agreement from Tyrone Clark V. Mass. Parole Board, Suffolk Superior Court Civil Action No. 03-3 l 9D." In its October 3rd response the Board asserts "[y] our request seeks a confidential settlement agreement executed between the Board and an incarcerated individual in connection to a litigation matter. The Board maintains that the Parole Board's litigation files are not public record and are exempt from disclosure because they are work-product and/or attorney-client privileged. See, Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007)." You note that "[t]he settlement agreement in this matter was not filed with the court and is not part of the public court record. Any public court documents regarding the above referenced case may be obtained from the Suffolk County Superior Court Civil Clerk's office." Mr. Norris objects to this response and indicates" ... the Suffolk Superior Court clerk[']s office has already told me they do not have it."

Shara Benedetti, Esq. SPRl 9/2106 Page 4 October 29, 2019 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 the Board cites Suffolk, I find the Board has not established how the settlement agreement was 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; that the communications were made in confidence; and that the privilege as to this communication has not been waived. Further, the Board must provide a detailed description of the withheld settlement agreement at issue as required by G. L. c. 66, § 1O A(a), as described above. Work product doctrine It should be noted that the Court opined on the issue of the work-product doctrine in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the Court 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) of the Public Records Law. 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. I find that the Board has not established how the withheld settlement agreement constitutes work product that may be withheld as contemplated in DaRosa; in particular, it is unclear how the responsive settlement agreement is "opinion" or "fact" work product that was prepared in anticipation of litigation or for trial.

Shara Benedetti, Esq. SPR19/2106 Page 5 October 29, 2019 Conclusion Accordingly, the Board is ordered to provide unredacted copies of a representative sample of responsive emails for in camera inspection without delay. The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. The Board is also ordered to provide Mr. Norris with a response to the request for the settlement agreement, provided in a manner consistent with this order, the Public Records Law and.its Regulations within 10 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: Kevin Norris