Eoin Higgins v. University of Massachusetts - Amherst (SPR 20212408)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2021 SPR21/2408 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 Appeals This request was the subject of previous appeals. See SPR21/2023 Supervisor of Records Determination (August 19, 2021) and SPR21/2124 Supervisor of Records Determination (September 1, 2021). In my September 1st determination, I ordered the University to provide additional information concerning the records it was withholding pursuant to the attorney-client privilege. Subsequently, the University responded on September 17, 2021. 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 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 SPR21/2408 Page 2 September 29, 2021 form or characteristics, made or received by any officer or employee of any agency or municipality 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. 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. Current Appeal In his appeal petition, Mr. Higgins states that he is “asking for the full scope of records ‘that was found in the search, based on the search terms.’ [He is] also asking that the Secretary of State’s office conduct an in camera review of the records [the University] is refusing to provide access to.” The University’s September 17th Response In its September 17, 2021 response, the University provided a privilege log for the documents it is withholding pursuant to 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 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

Christine M. Wilda SPR21/2408 Page 3 September 29, 2021 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 its September 17th response, the University provided a privilege log listing nine records. For each record, the University provided the author, recipients, subject, date, and a brief explanation of the grounds for claiming the privilege. Accordingly, I find the University has met its burden in claiming the attorney-client privilege for these records. Unclear Appeal In its September 17th response, the University states that it “did not list attorney client correspondence that was found in the search, based on the search terms, but completely unrelated to the Higgins request.” Mr. Higgins states in his appeal petition that he is “asking for the full scope of records ‘that was found in the search, based on the search terms.’” Where the University has confirmed that it has provided all records responsive to Mr. Higgins’ request, I find that the basis of this part of Mr. Higgins’ appeal is unclear. Mr. Higgins is advised that all requestors of a petition for appeal must allege a “failure by a records access officer to comply with a requirement of 950 CMR 32.00.” See 950 C.M.R. 32.08(1)(b). If Mr. Higgins seeks additional records, he may wish to submit a new request to the University, specifically describing the records he seeks or the search-terms to be used. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Higgins wishes to submit an additional public records request to the University, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins