Deeper Than Water v. Division of Capital Asset Management (SPR 20211238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1238 Christopher Guerin Special Counsel/Records Access Officer Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Deeper than Water of MuckRock News appealing the response of the Division of Capital Asset Management and Maintenance (Division/DCAMM) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2021, the requestor sought, “all email communication between and among the DOC, DCAMM, EOPSS, and the Governor’s Office from November 1, 2020 to December 31, 2020 regarding any proposed or planned new women’s prison.” DCAMM provided a response to the requestor on May 6, 2021. Unsatisfied with DCAMM’s response, the requestor petitioned this office and this appeal, SPR21/1238, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § 10(b)(iv). 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

Christopher Guerin, RAO SPR21/1238 Page 2 June 1, 2021 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. DCAMM’s May 6th response In its May 6, 2021 response, DCAMM states it “withheld interoffice correspondence which we have determined is protected by the attorney-client privilege, the applicability of which was upheld in Suffolk Construction Co., Inc., v. Division of Capital Asset Management, 449 Mass. 444 (2007).” The requestor indicated in the appeal petition, “DCAMM was in close communication with outside vendors who would not be covered by attorney client privilege leading up to November.” The requestor contends that “DCAMM has been overly broad in the application of attorney client privilege to cover all correspondence in this window of time.” 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 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). DCAMM claimed the “subject internal correspondence is between DCAMM business units and DCAMM’s Office of General Counsel made for the purpose of obtaining legal advice or assistance, has not been disclosed to third parties, and the privilege of which has not been waived.” DCAMM is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. 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. DCAMM must provide a privilege log and

Christopher Guerin, RAO SPR21/1238 Page 3 June 1, 2021 further explain how the above cited communication constitutes attorney-client privileged communication claimed in the May 6th response. Conclusion Accordingly, DCAMM is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Deeper than Water