Joseph Viglione v. Attorney General's Office (SPR 20192470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth - Public Records Division

Rebecca S, Murray Supervisor of Records

December 27, 2019

. SPR19/2470 Lorraine A.G. Tarrow, Esq.

Records Access Officer

Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108

Dear Attorney Tarrow:

I have received the petition of Joseph Viglione appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R.

- 32.08(1). Specifically, on November 26, 2019, Mr. Viglione requested a copy of the following records:

1) [a]ll documents that the Public Charities Division ... has regarding the dissolution of the Medford Community Cablevision, Inc...[;]

2) [dJocuments regarding similar 501c3’s — be they P/E/G access or not, in regards to the length of time to make a determination|[;]

3) [a]ll documents which note that the board of directors’ members were exonerated|;] [4]) [a]ll documents internally at the AG’s office from employees of the public charities division as well as employees of the full office of the Attorney General discussing Medford Community Cablevision, Inc., including but not limited to internal memos, texts, voice mails, letters, etc. including any from [the] [former and current Attorney General] [and] [certain] [employees] [of] [the] [City of Medford][;]

[5]) All documents - thus far - in the Public Charities investigation of MCC TV3.”

Unsatisfied with the AGO's response, Mr. Viglione petitioned this office and this appeal, SPR19/2470, 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, § 1OA(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. SPR19/2470 Page 2 December 27, 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, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ...'"); 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).

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The AGO’s December 12" response — Part 1

In its December 12" response, the AGO denied Part 1 of the request for responsive records in their entirety and asserted “the dissolution of the Medford Community Cablevision (‘MCC’) is still an ongoing matter and until such time that it is closed, [the] [AGO] [is] withholding records associated with that matter as they possess a deliberative or policymaking character and relate to an ongoing deliberate process. See G.L. c. 4 §7 26 (d).”

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

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).

With respect to Exemption (d), the AGO states that the dissolution of MCC is an ongoing matter and records are being withheld pursuant to G. L. c. 4, § 7(26)(d). I find that the AGO’s - response does not explain how the MCC dissolution relates to inter-agency or intra-agency

Lorraine A.G. Tarrow, Esq. | SPR19/2470 Page 3 December 27, 2019

memoranda or letters relating to policy positions being developed by the AGO as required by Exemption (d). Further, the AGO has not explained how the disclosure of records would taint the deliberative process. As a result, the AGO has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). Please note 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).

The AGO’s December 12" response — Part 2

With regard to Part 2, the AGO indicates in its December 12" response “...in order for us to search for potentially responsive records, [the] request needs to. ‘reasonably describe the public records being sought.’ See G. L. c, 66, §10(a)(i).”

I encourage Mr. Viglione and the AGO to communicate further in order to facilitate producing records efficiently and affordably. Mr. Viglione may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § 10(a)(i). The AGO must use its knowledge of the records to facilitate providing any responsive records. G, L. c. 66, § 10(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably).

The AGO’s December 12 response — Part 3

The AGO explains “[a]s to Part 3, the [AGO] [has] no records responsive to [the] request.” Please be advised, under the Public Records Law the AGO is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

The AGO’s December 12" response — Part 4

The AGO asserts “[a]s to Part 4 of [the] request, in its current form, ... would require a search across the office of all current and former AGO employees, with no constraints on the time frame within which to search for records ... [the] search would be unduly burdensome to [the] [AGO] and very costly to you.” Further, the AGO states that “‘[i]n its current form, [the] request doesn’t provide enough information on which we could produce a good faith cost estimate of any fees that may be charged to respond to [the] request.” The AGO also states, the AGO “expect[s] to withhold many if these records as they would be considered privileged attorney-client communications or information that constitutes attorney work product.”

Common law attorney-client privilege

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The AGO indicated that it may claim that records responsive to Part 4 of the request are attorney-client communications that are protected entirely under the 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 (2017); 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 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, § 1OA(a).

The AGO may suggest a reasonable modification of the scope of the request or offer to assist Mr. Viglione to further modify the scope of the request if doing so would enable the AGO to produce records sought more éfficiently and affordably. I encourage the parties to communicate and work together to find responsive records, Once the scope is determined, the AGO must

provide the details upon which the attorney-client privilege is being claimed in accordance with G. L, c. 66, § 10A(a).

The AGO’s December 12" response — Part 5

With regard to Part 5, the AGO asserts that “the records [sought] are not subject to disclosure because they fall within ... G.L. c. 4 §7 26(f), as they are investigatory materials... the disclosure of which would compromise effective law enforcement.”

Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials

would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

G.L.c. 4, § 7(26)(f).

Lorraine A.G. Tarrow, Esq. , SPR19/2470 Page 5 December 27, 2019

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be - prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass, at 290 n.18, Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

I find the AGO has not demonstrated how disclosure of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Particularly, the AGO did not provide sufficient supporting information to demonstrate how all these records contain identifying information of voluntary witnesses, nor how disclosure would compromise or negatively impact its future investigative efforts. Therefore, I find that the AGO has not met its burden of specificity in claiming Exemption (f) to withhold the records in their entirety.

Conclusion

Accordingly, the AGO is to provide a response to Mr. Viglione 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, a Muay, Supervisor of Records

ce: Joseph Viglione