Lisa C. Goodheart v. Attorney General's Office (SPR 20192452)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 26, 2019 SPR19/2452 Lorraine A.G. Tarrow, Esq. Assistant Attorney General & Records Access Officer Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Attorney Lisa C. Goodheart of Sugarman, Rogers, Barshak & Cohen, P. C. appealing the response of the Office of the Attorney General (Office) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Goodheart requested several categories of records related to the Office's regulation of manufactured housing. The Office has produced most of the requested records, leaving several contested emails subject to this appeal. Previous Appeal This request was the subject of a prior appeal. SPR 19/2141 Determination of the Supervisor of Records (November 1, 2019). I closed SPR 19/2141 after learning that the Office intended to provide a supplemental response to Attorney Goodheart. The Office provided this response on November 21, 2019, provided several redacted records, and withheld others pursuant to Exemption (d ) and the attorney-client privilege. Unsatisfied with this response Attorney Goodheart petitioned this office and this appeal, SPRl 9/2452, was opened as a result. Tlie 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). 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

Lorraine A.G. Tarrow, Esq. SPR19/2452 Page 2 December 26, 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, § 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. G. L. c. 66, § lO(b)(iv). Current Appeal In its November 21, 2019 response, the Office states that it has "properly invoked G.L. c. 4, § 7, c. 26(d), the 'deliberative process' exemption, to withhold certain records and information responsive to your request, as they are materials that possess a deliberative or policymaking character and relate to an ongoing deliberative process." 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 maybe 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 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) (pµrely factual matters used in the development of government policy are subject to disclosure). Only pmiions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. In its November 21st response, the Office states that "the e-mails withheld and redacted under G.L. c. 4, §7, cl. 26(d) are not public records because they possess a deliberative or policymaking character in that they reflect AGO legal thought processes, and they relate to an ongoing deliberative process, i.e., the AGO's continuing regulation and enforcement of manufactured housing communities." The Office additionally claims that "[s]uch deliberative materials also constitute attorney work product as atiiculated in DaRosa v. City of New Bedford."

Lorraine A.G. Tarrow, Esq. SPR19/2452 Page 3 December 26, 2019 In her appeal petition, Attorney Goodheart argues that "[t]he deliberative process exemption does not protect the records considered by the AGO when it developed the November 2017 Guide indefinitely, simply because they potentially could impactfuture deliberations" (emphasis in original). Attorney Goodheart further argues that "[t]he publication of the November 2017 Guide was not simply an 'interim step' with respect to the police deliberations at issue. It was the culmination and termination of the policy deliberation regarding whether and what changes should be made from the prior 2015 version of the Guide." Based on the Office's responses, I find that it has not met its burden to withhold resp9nsive records pursuant to Exemption ( d). In particular, it is unclear whether the responsive documents were prepared in anticipation of litigation or for trial. It is further unclear whether the deliberative process pursuant to which the documents were prepared remains ongoing. The Office must clarify these matters. Inter- and Intra-agency Memoranda Attorney Goodheart argues that two particulai; records, consisting of emails between AAG Less and Sandra Overlock, do not constitute "intra- [or] inter-office e-mails" because "Sandra Overlock is not an AGO staff member, nor is she any kind of 'consultant' to the AGO. To the contrary, Sandra Overlock is the president of a private corporation .... " In light of Attorney Goodheart' s petition, the Office must explain how these records constitute either "inter agency or intra-agency memoranda" as defined in Exemption ( d). Attorney-client privilege In its November 21st response, the Office additionally stated that it is "withholding from disclosure as protected attorney-client communications the two (2) intra-agency emails in which AAsG have sought, and/or been given, legal advice from other AAsG ... " There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r of the Dept. of Mental Retai·dation (No. 1), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Blee. Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the "general nile" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting

Lorraine A.G. Tarrow, Esq. SPR19/2452 Page 4 December 26, 2019 Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn.9, citing Matter of the Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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). 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 "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). The Office states that the identified emails "ultimately reflect communciations concerning, and decisions resulting in, one course of action over another and are the very communications that are protected under the attorney-client privilege as articulated in Suffolk .... " The Office further argues that "the AAsG appointed and employed by the Attorney General, a 'public officer,' serve as her legal counsel in matters that are undertaken on behalf of the Attorney General, the AGO, and/or the Commonwealth." The Office continues: "[d ]iscussions between AGO colleagues are the functional equivalent of discussions between associates in a private law firm and discussions between AGO line attorneys and managers are the functional equivalent of discussions between associates and paiiners in a private law firm." Index ofR esponsive Records In its November 21st response, the Office identifies 6 records that it has either withheld or redacted. In her December 1o th appeal petition, Attorney Goodheart lists 7 disputed records, two of which are emails that have been withheld in their entirety, and 5 that have been produced in redacted form. Based on a conversation between the Office and a member of the Public Records Division staff, it appears this discrepancy results from Attorney Goodheart treating one set of emails between AAG Less and Christopher Jee, dated October 20-23, 2019, as two separate threads. In light of this information, I find the Office has satisfied its requirement to identify the withheld records. Accordingly, I find the Office may permissibly withhold the two responsive emails under the attorney-client privilege.

Lorraine A.G. Tarrow, Esq. SPR19/2452 Page 5 December 26, 2019 Conclusion Accordingly, the Office is ordered to provide Attorney Goodheart with a response to the request, 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, ~ ffJ;1;1;J:ArIJ:A;J1- o ,· Rebecca S·. Supervisor of Records cc: Lisa Goodheart, Esq.