Eileen W. Mooney v. Department of Housing & Community Development (SPR 20200475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 19, 2020 SPR20/0475 Adrian Walleigh, Esq. Counsel-Records Access Officer Department of Housing & Community Development 100 Cambridge Street; Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Eileen W. Mooney appealing the response of the Department of Housing & Community Development (DHCD) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2020, Ms. Mooney requested: "all correspondence, including emails between Great Barrington Housing Authority (GBHA) staff and board members; personnel of the state [DHCD]; employees of the accounting firm Fenton-Ewald; and any other relevant parties regarding DHCD's review of the GBHA's budget for the fiscal year that began April 1, 2019, and the revision of the budget that apparently was done in late 2019. This includes emails with attachments if applicable, and any printed material. My understanding is that DHCD personnel corresponded with GBHA staff or with Fenton-Ewald accountants about budget revisions." With its February 27, 2020 response, the DHCD provided Ms. Mooney with certain of the requested records; redacted some emails; and withheld certain of the requested records as deliberative process, and the attorney-client privilege and attorney work product. As a result, Ms. Mooney petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Ms. Mooney indicates she is appealing the DHCD's withholding of three (3) documents; the fact that DHCD did not claim an exemption for two of the documents; and that no document provided to her refers to a DHCD review of the housing authority's budget. 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

Adrian Walleigh, Esq. SPR20/0475 Page 2 March 19, 2020 Status of the requestor In addition in her petition Ms. Mooney states, "I am an elected board member of the [GBHA] and concerned that the board has not been sufficiently informed about its finances ... [m]y responsibility as a board member and my right to whether my rent and apaiiment are properly handled - I feel I am entitled to this information." It is important for Ms. Mooney to understand that her interest in the responsive record, as a board member and tenant, does not afford her any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested 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, 371 Mass. 59, 64 (1976). Accordingly, Ms. Mooney's status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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) (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). DHCD's February 27, 2020 response In its February 27th response, DHCD indicates that all public records requests responsive to Ms. Mooney's request were enclosed. However, DHCD did not identify the records, categories of records or portions of records in its possession that it provided. DHCD did provide Ms. Mooney with a list of the documents that were withheld in their entirety under an exemption, and documents redacted under the common law attorney-client privilege. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, DHCD withheld responsive records without providing the specific exemption in the Public Records Law; only stating with two (2) of the records that it withheld were "deliberative process" documents. DHCD did not meet its burden of specificity in responding to Ms. Mooney's request.

A.drian Walleigh, Esq. SPR20/0475 Page 3 March 19, 2020 Burden of specificity; duty to segregate DHCD claims that two of the documents, the "[GBHA] summary of concerns regarding financial and management operations; and a spreadsheet summarizing AUP and PMR findings," are draft documents that may be withheld under the "deliberative process." However, DHCD did not specifically claim an exemption in the Public Records Law that allows DHCD to withhold the documents in their entirety. DHCD denied Ms. Mooney's request for access to two documents without claiming any exemption in the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. DHCD did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). Common law attorney-client privilege DHCD provided Ms. Mooney with a privilege log for the email communications that it withheld in their entirety and one in redacted format under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). However, DHCH did not provide Ms. Mooney with the required detail under both Suffolk and the Public Records Law. 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 Retardation (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 rule" 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 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 Comi

Adrian Walleigh, Esq. SPR20/0475 Page 4 March 19, 2020 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 of Elec. 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 that 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, § 1O A(a). Emails withheld under attorney-client privilege and the work product exception A review by this office of DHCD's privilege log for the emails that were withheld reveals that DHCD listed the names of some of the senders and recipients of the email communications, the basis for withholding and/or redacting, and the dates of the emails. However, DHCD did not provide the general subject matter of the communications. Nor has DHCD identified the attorney(s) who offered legal advice to their client(s) in the course of the client seeking legal advice from their legal counsel. In both the June 25, 2019 and May 23, 2019 emails, DHCD did not identify the names and titles of the recipients of the communications. Further, DCHD did not provide all the names of the authors and recipients of the emails and whether the authors and recipients are attorneys or clients, the substance of each such record and the grounds upon which attorney-client privilege is being claimed. DHCD did not provide the level of specificity in its privilege log and response to comply with the 3-part test in Suffolk. DHCD must provide a detailed response specifying 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; that the communications were made in confidence; and that the privilege as to these communications has not been waived. See Suffolk, 449 Mass.450, fn 9.

Adrian Walleigh, Esq. SPR20/0475 Page 5 March 19, 2020 I find that DHCD did not meet its burden of specificity in withholding content from the emails and in withholding email(s) in their entirety under the requirements in Suffolk and the Public Records Law. See Suffolk, 449 Mass. at 450; see also G. L. c. 66, § lOA(a). Attorney work product DHCD has also claimed that the email communications are protected as attorney work product. The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a paiiy or its representative falls within the scope of Exemption (d). 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. The Court left open "the question whether opinion work product might no longer be protected once the litigation is concluded," noting that the answer "may depend on the particular circumstances, such as the risk of similar litigation." Id., at 459 n.16. Based on DHCD's February 2t11 response, I find that it has not met its burden of specificity in withholding email communications under the attorney-work product claim pursuant to Exemption ( d) and the finding in DaRosa. Conclusion Accordingly, DHCD is ordered to provide Ms. Mooney with a response to the request and the records withheld under the exemption claims, 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, llJJWA-~ Rebecca S. Murray Supervisor of Records cc: Eileen W. Mooney Alexander Goodrich