Felicia Sullivan v. Executive Office of Education (SPR 20201317)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2020 SPR20/1317 Matthew Connolly, Esq. General Counsel Executive Office of Education One Ashburton Place; Room 1403 Boston, MA 02108 Dear Attorney Connolly: I have received the petition of Felicia Sullivan, Esq. appealing the response of the Executive Office of Education (EOE) to a request made to the Department of Early Education and Care for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Sullivan requested pursuant to the Fair Information Protection Act (FIPA): • [Her] entire Human Resource [f]ile; • All electronic files pertaining to Felicia Sullivan, including e-mails and meetings about or including Felicia Sullivan; • All handwritten and electronic notes created by Felicia Sullivan; • All documents created by Felicia Sullivan; • All emails sent or received by Felicia Sullivan at [an identified email address]; • All calendar invites including or pertaining to Felicia Sullivan; • All text messages sent and received by Felicia Sullivan [from an identified telephone number]; and • Any and all emails and text messages of third parties pertaining to Felicia Sullivan. In response to Attorney Sullivan’s request, the EOE provided her with a July 20, 2020 response under the Public Records Law. Enclosed with the July 20th response, Attorney Sullivan was provided with a copy of her HRCMS record, and a copy of her PACE transcript. Attorney Sullivan’s final payroll information was emailed to her. Previously on June 29, 2020, a copy of Attorney Sullivan’s personnel file was provided to her under the requirements of G. L. c. 149, § 52C. In its July 20th response, the EOE asserts, “[t]he remainder of [Ms. Sullivan’s] request does not fall within the scope of FIPA….[and] most of the documents [Ms. Sullivan] request[ed] 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

Matthew Connolly, Esq. SPR20/1317 Page 2 August 20, 2020 are protected from disclosure by the attorney-client privilege; the attorney work-product doctrine, and other applicable exemptions.” The EOE’s response asserts that the records are not subject to FIPA, because Ms. Sullivan’s request seeks records that are subject to the Public Records Law. The EOE states, “FIPA involves the Commonwealth’s collection, maintenance, and dissemination of personal information relating to identifiable individuals. See M. G. L. 66A, § 1.” Further, EOE’s response states, “FIPA expressly excludes from the meaning of personal data information contained in a public record, and thus, public records are excluded from the definition of personal data under FIPA. See id., Torres v. Attorney General, 391 Mass 1 (1984); Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 419 (1988).” As a result of the EOE’s July 20th denial to provide the remainder of records, Ms. Sullivan petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor In her August 5, 2020 petition to the Supervisor, Attorney Sullivan indicates that the records should not be withheld or exemption because she is seeking, “….any and all manual or electronic date created, written, or maintained by or about me.” Please note that Attorney Sullivan’s interest in the responsive records 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, Attorney Sullivan’s status will play no role in a determination as to whether the records 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, § 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).

Matthew Connolly, Esq. SPR20/1317 Page 3 August 20, 2020 Common law attorney-client privilege In its July 20th response, the EOE claimed that it is withholding requested records under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). I note that the EOE did not identify the specific records it is withholding 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 substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a).

Matthew Connolly, Esq. SPR20/1317 Page 4 August 20, 2020 Based on the EOE’s July 20th response, I find that the EOE has not met its burden of withholding records under the 3-step test in Suffolk and the Public Records Law. See Suffolk, 449 Mass. 450, fn 9; see also G. L. c. 66, § 10A(a). Therefore, the EOE must provide Attorney Sullivan with a response that complies with Suffolk and the Public Records Law. Exemption (d) – attorney work-product doctrine Pertaining to Attorney Sullivan’s request, the EOE is withholding records pursuant to the attorney work-product doctrine, through Exemption (d) of the Public Records Law. 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 sub-clause 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. Mini, 410 U.S. 73, 89 (1973) (purely factual -------------------------- matters used in the development of government policy are subject to disclosure). Attorney work-product doctrine The Supreme Judicial Court (SJC) 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 party 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 SJC 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.

Matthew Connolly, Esq. SPR20/1317 Page 5 August 20, 2020 Based on the July 20th response, I find the EOE did not meet its burden of specificity in claiming the attorney work-product doctrine under Exemption (d). Further, the EOE did not specify what records, categories of records or portions of records it is withholding under this exemption and how the records are exempt from disclosure in their entirety. Other exemptions in the Public Records Law In its July 20th response, the EOE indicates that it is withholding records under other exemptions in the Public Records Law in addition to the records it is withholding under the attorney-client privilege and the attorney work-product doctrine, as it operates through Exemption (d). The EOE has not met its burden of specificity in responding to Attorney Sullivan’s request, by not specifically claiming the additional exemptions that may apply to withhold records either in their entirety, or to portions of those records. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. -------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The EOE 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). The EOE must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, the EOE did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under each of the exemptions and/or privileges. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the EOE withheld responsive records without identifying each of the records. Therefore, the EOE must identify what type of record(s) it has in its possession that the EOE withheld. Conclusion Accordingly, the EOE is ordered to provide Attorney Sullivan with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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.

Matthew Connolly, Esq. SPR20/1317 Page 6 August 20, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Felicia Sullivan, Esq.