Colman Herman v. Executive Office of Elder Affairs (SPR 20202584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2021 SPR20/2584 Lesley Moreau Records Access Officer Executive Office of Elder Affairs One Ashburton Place, Room 517 Boston, MA 02108 Dear Ms. Moreau: I have received the petition of Colman Herman appealing the response of the Executive Office of Elder Affairs (Office/EOEA) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 14, 2020, Mr. Herman stated: On July 8, 2020, I filed a public records request with the Executive Office of Elder Affairs (“Elder Affairs”) seeking copies of communications between Elder Affairs and the federal Administration for Community Living related to assisted living for the period January 1, 2019 to February 25, 2020. I subsequently had to file two appeals regarding this matter (SPR20/1717 and SPR20/1954). . . . Please provide me with hard copies and electronic copies of any and all communications related to my public records requests and my public records appeals in this matter. Communications include, but are not limited to emails, letters, memoranda, facsimiles, and notes. I do not want copies of any communications in which I was a recipient.” Previous appeal The requested records were the subject of a previous appeal. See SRP20/2500 Determination of the Supervisor of Records (December 23, 2020). I closed SPR20/2500 after I learned that the Office had provided Mr. Herman with a response on December 22, 2020. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR20/2584, was opened as a result. 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

Lesley Moreau SPR20/2584 Page 2 January 11, 2021 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); 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. The Office’s December 22nd response In its December 22, 2020 response, the Office enclosed 17 communications responsive to Mr. Herman’s request, but withheld 150 communications pursuant to the attorney-client privilege. The Office states that “[t]he withheld communications include communications between EOEA’s Legal Counsel and EOEA employees containing legal advice; and communications between EOEA’s Legal Counsel and EOHHS’ General Counsel’s Office and EOHHS employees containing legal advice.” The Office explains that “[t]he legal advice shared between EOEA and EOHHS and between EOEA’s Legal Counsel and employees, set forth in the withheld emails, was shared with the expectation, and continued expectation, of confidentiality. . . . The parties involved in the 150 privileged communications shared legal advice with each other reasonably believing no one would learn the contents of the communication except a privileged person or another person with whom communications are protected under a similar privilege. The parties expected the communications to remain confidential and, in fact, they have been kept confidential.” Additionally, the Office states that “[t]he subject communications have not been shared with third parties and have remained confidential. Accordingly, there has been no waiver of the attorney-client privilege.” 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 (2007); see also

Lesley Moreau SPR20/2584 Page 3 January 11, 2021 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). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. 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, § 10A(a). In his appeal petition, Mr. Herman states “[t]he log is numbered 1 to 150. The following items do not involve any attorneys and thus they are not subject to attorney-client privilege: 57, 58, 59, 60, 63, 64, 85, 92, 107, 117, 118, 119, 120, 121, 122, 123, 135, 138, 139, and 141. Thus, the emails cannot be withheld.” Based on the above, the Office must explain how the above cited communications constitute attorney-client privileged communications as claimed. Mr. Herman also contends “[the Office] did not provide the dates for any of the 150 emails withheld.” The Office is advised that G. L. c. 66, § 10A(a) requires that a records custodian provide the date of the communication or record when providing a privilege log. Accordingly, the Office must provide the dates of each of the 150 communications that have been withheld. Additionally, Mr. Herman states “[i]n its cover letter dated December 22, 2020, [the Office] states raw [sic] following. EOEA has provided an index of communications withheld from production pursuant to the attorney-client privilege. In accordance with 950 CMR 32.06(3) (d), the index provides the To, From, CC and BCC fields . . . . [emphasis added]. But there were no BCCs listed in the privilege log. Thus, it is not clear whether they were omitted or none exist. . . .” Where G. L. c. 66, § 10A(a) provides that a records custodian provide the names of the author and recipients of the record, I find the Office must clarify whether it possesses additional information, particularly, the bcc fields to these communications. 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). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is

Lesley Moreau SPR20/2584 Page 4 January 11, 2021 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: Colman Herman