Susan Butler v. Massachusetts Department of Transportation (SPR 20200973)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2020 SPR20/0973 William J. Doyle, Esq. Office of the General Counsel Massachusetts Department of Transportation Ten Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Susan Butler appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Butler requested: “1. Minutes of any meeting held and attachments sent by [MassDOT]/Aeronautics Division on [f]alse statements made by John Hanlon on his 2019 renewal of PRLA; 2. All correspondence and attachments sent by [MassDOT]/Aeronautics Division to Town of Sheffield regarding our May 17, 2019 “Request for Investigation.” If Attorney Klay did not correspond with Sheffield Zoning Enforcement Officer Paul Greene, please state that no correspondence took place from [A]ttorney Klay to [O]fficer Paul Greene; 3. All correspondence sent by a Sheffield Official to the [MassDOT]/Aeronautics Division regarding our May 17, 2019 “Request for Investigation…” If [O]fficer Paul Greene did not correspond with Attorney Klay, please state that no correspondence took place from [O]fficer Greene to Attorney Klay; 4. Hanlon’s inspection report for [MassDOT]/Aeronautics Division Inspection of Hanlon’s PRLA that took place after September 24, 2019. If no PRLA inspection took place after September 24, 2019, please explain why this inspection did not take place. Administrator Jeffrey DeCarlo’s December 11, 2019 letter to John Hanlon informs John Hanlon that on inspection of his PRLA took place on August 8, 2019 letter to John Hanlon reveals that no inspection of Hanlon’s PRLA has been able to be scheduled.” By letter dated May 19, 2020, MassDOT provided Ms. Butler with records responsive to her requests. Your May 19th letter explains, “…some text has been redacted as it is subject to the attorney-client privilege. Those emails, as indicated in the header, were sent or received between 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

William J. Doyle, Esq. SPR20/0973 Page 2 July 1, 2020 MassDOT employees and Attorney Tracy Klay, MassDOT’s aeronautics attorney.” MassDOT also asserts that there are no handwritten notes made during the investigation conducted by the Aeronautics Division. Under the Public Records Law, the Office 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 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, § 10A(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, § 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). June 23, 2020 response from MassDOT On June 23, 220, after this appeal was opened, MassDOT provided Ms. Butler with a second response. In its June 23rd response it indicates, “[p]lease be advised that MassDOT has no additional public records responsive to your request, beyond those previously provided to you by letter on May 19, 2020 relative to our Reference No. P00072-060920.” MassDOT also indicates that, “[t]he Massachusetts Public Records Law does not mandate that we provide any answers to questions, unless we have records that would do so; again, all responsive records have been previously produced.” In an inquiry by a Senior Attorney in the Public Records Division, MassDOT was asked to explain whether it had informed Ms. Butler whether it was not in possession, custody or control of any of the records responsive to her four enumerated requests. To date, it is unclear to this office what records MassDOT provided that are responsive to all four of her enumerated requests, and whether MassDOT has provided Ms. Butler with a response to address this issue.

William J. Doyle, Esq. SPR20/0973 Page 3 July 1, 2020 Common law attorney-client privilege MassDOT provided Ms. Butler with email communications between a MassDOT Aeronautics attorney and employees of MassDOT; however, content from the communications was withheld under the attorney-client privilege. 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 Elec. 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 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 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

William J. Doyle, Esq. SPR20/0973 Page 4 July 1, 2020 substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In your May 19th response you informed Ms. Butler that the email communications’ headers detail the dates of the communications; that the communications were sent and received between MassDOT employees and Attorney Tracy Klay; and the general subject matter of the communications is, “RE: Letter from S. Butler Received 12-22-19 RE: Hanlon.” However, in claiming the attorney-client privilege to withhold communications, MassDOT must specify 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; the communications were made in confidence; and the privilege as to these communications has not been waived. See Suffolk Constr. Co., 449 Mass. 450, fn 9. Conclusion Accordingly, MassDOT is ordered to provide Ms. Butler with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is practicable. 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: Susan Butler