Todd Wallack v. Executive Office of Housing & Economic Development (SPR 20211108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2021 SPR21/1108 Robert McGovern, Esq. Records Access Officer/Deputy General Counsel Executive Office of Housing and Economic Development 1 Ashburton Place, Room 2101 Boston, MA 02108 Dear Attorney McGovern: I have received the petition of Todd Wallack of WBUR appealing the response of the Executive Office of Housing and Economic Development (Office/EOHED) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 22, 2021, Mr. Wallack requested the following: An electronic copy of the office’s log of public records requests (including for any agencies within the executive office/secretariate) as far back as it has maintained the data in electronic form in its current system. Please include any fields that are public, including the name of the requestor, email or phone of the requestor, city of the requestor, summary of the request, date of the request, and resolution of the request. I also ask that you include any technical documentation needed to understand the codes in the database, such as a record layout or data dictionary. The Office provided a response on April 30, 2021, producing certain records and denying access to other portions pursuant to the common law attorney-client privilege. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office and this appeal, SPR21/1108, 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). 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

Robert McGovern, Esq. SPR21/1108 Page 2 May 12, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s April 30th response In its April 30, 2021 response, the Office states “[i]n order to provide professional legal services to EOHED, the EOHED legal team has created various logs of public records requests, including most recently a log that contains requests received in calendar year 2021. These logs are generally organized by calendar year, and during that year are living documents that are constantly being updated and revised by the legal team.” The Office explains that “[t]hese logs contain confidential notes made by attorneys about the status of each public records request and the manner in which the request is being fulfilled. Even in the absence of such confidential notes, the logs themselves are privileged because they were created by EOHED attorneys for the purpose of providing professional legal services to EOHED and sharing information among the legal team.” Further, the Office indicates, “[t]he logs are maintained on a secure cloud-based system, in a folder with access limited to members of the EOHED Legal team, all of whom are attorneys representing EOHED. To the extent that portions of these documents were shared, they were shared only within EOHED for the purposes of providing professional legal services to EOHED. As confidential documents created by attorneys that have not been shared with outside parties, they are subject to the attorney-client privilege and the privilege has not been waived.” 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 (2017); see also Hanover Ins. Co. v. Rapa & 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.

Robert McGovern, Esq. SPR21/1108 Page 3 May 12, 2021 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). Based on the foregoing, I find the Office must provide a privilege log in accordance with G. L. c. 66, § 10A(a). The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack 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 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: Todd Wallack