Eoin Higgins v. University of Massachusetts - Amherst (SPR 20212124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2124 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts, Amherst 340 Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Eoin Higgins appealing the response of the University of Massachusetts Amherst (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2021, Mr. Higgins requested the following: [A]ll emails and attachments from November 23, 2020 to July 23, 2021 from Christine Wilda and the Records Access Office…having to do with the CD-1 race, [two named individuals], and the local, state, college, and national Democratic Party; as well as requests from [another individual] and any other journalists for records about the above. This includes, but is not limited to, any and all emails and attachments from all email addresses within the records access office pertaining to, from, or addressed to [a list of 16 individuals and groups]. Previous Appeal This request was the subject of a previous appeal. See SPR21/2023 Supervisor of Records Determination (August 19, 2021). In my August 19th determination, closed SPR21/2023 in light of the University’s August 10, 2021 supplemental response. Unsatisfied with the University’s response, Mr. Higgins appealed, and this case 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 agency 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

Christine M. Wilda SPR21/2124 Page 2 September 1, 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. Current Appeal In his appeal petition, Mr. Higgins contends that the University “declares there are a number of emails that fall under attorney client privilege but does not list which they are. [He] would like a list and to request the [Public Records Division] examine them in camera to ensure they meet the standard of withholding.” The University’s August 10th Response In its August 10, 2021 response, the University provided numerous responsive records, and stated that “[t]he only records withheld are those covered under 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 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 not inspect the record but 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 this case, the University’s response did not meet its burden for withholding records pursuant to the attorney-client privilege. While the University has stated that it is withholding emails pursuant to the attorney-client privilege, the University did not provide for each record the names of the authors and recipients, the date, the substance of the record, and the grounds

Christine M. Wilda SPR21/2124 Page 3 September 1, 2021 upon which the attorney-client privilege is being claimed. See G. L. c. 66, § 10A(a). The University must provide this information. Conclusion Accordingly, the University is ordered to provide Mr. Higgins with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins