Wayne Willis v. Department of Developmental Services (SPR 20210382)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2021 SPR21/0382 Erin G. Brown, Esq. Assistant General Counsel Department of Developmental Services 100 Washington Street Boston, MA 02118 Dear Attorney Brown: I have received the petition of Wayne Willis appealing the response of the Department of Developmental Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 28, 2021, Mr. Willis requested “[f]rom January 1, 2020, to March 27, 2020 please send me a copy, of all e-mail, or mailed letters, records, notes, and memos from you, or to you, personally, or to you, as an authorized agent of the DDS General Counsel, or from you, as an authorized agent of the DDS General Counsel, or personally, regarding any subject, regarding [an identified individual] or [an identified individual] from any, and all, persons, and employees of EOHHS, DDS, and Governor Baker’s office.” The Department provided a response on February 11, 2021, which included responsive records, as well as indicating records were being withheld citing attorney-client privilege. Unsatisfied with this response, Mr. Willis petitioned this office and this appeal, SPR21/0382, 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, § 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 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

Erin G. Brown, Esq. SPR21/0382 Page 2 March 2, 2021 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 Department’s February 11th response In its February 11th response, the Department indicates “[c]onsistent with the requirements of M.G.L. c. 66, §10A(a), DDS is providing you with a spreadsheet identifying documents subject to the attorney client privilege. Regarding Attorney-Client Privilege: Communications between DDS staff and the DDS Legal Office may contain information subject to the attorney-client privilege are being withheld. See Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444 (2007) (attorney-client privilege for confidential communications between agency officers/employees and legal counsel undertaken for the purpose of obtaining legal advice or assistance); DaRosa v. City of New Bedford, 471 Mass. 446 (2015)(opinion work product sought in anticipation of or during the pendency of litigation is protected from disclosure under the Public Records Law); and Matter of the Reorg. of Elec. Mut.Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423 (1997) (‘[I]t is fundamental that only a client can waive the attorney-client privilege.’)” In his appeal petition, Mr. Willis contends “[n]o information was supplied, including ‘the names of the author, date, description and substance of the records and the recipients.’” Subsequent to the opening of this appeal, the Department provided a response to this office on February 17, 2021, which states “Mr. Willis wrongly asserts in his appeal to the Supervisor of Records that DDS failed provide him with information speaking to the requirements of G.L. c 66 Section 10A(a). However, in its February 11, 2021 response, DDS did in fact provide Mr. Willis with a spreadsheet containing the date, author, recipients and description of the withheld documents. See February 11, 2021 email to Wayne Willis with attached letter, spreadsheet and zip file of the responsive records.” Based on the foregoing, it is unclear what the basis of Mr. Willis’s appeal is. Mr. Willis is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Accordingly, Mr. Willis must describe his specific objections to the Department’s February 11th response.

Erin G. Brown, Esq. SPR21/0382 Page 3 March 2, 2021 Conclusion Based on the above, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis James Bergeron, Esq.