Cheryl Willis v. Department of Developmental Services (SPR 20212725)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2021 SPR21/2725 Brian Fleming, Esq. Assistant General Counsel Records Access Officer Executive Office of Health & Human Services Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Fleming: 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 August 23, 2021, Mr. Willis requested “email, regardless of the Subject, sent to, CC’d to, or received by [a named] DDS employee . . . on 1/23/2020 and 1/24/2020.” The Department provided Mr. Willis with a fee estimate on September 7, 2021. Following the payment of fees, the Department provided a written response on October 13, 2021, including numerous records in redacted form and claiming to withhold others pursuant to the attorney-client privilege. Unsatisfied with the Department’s response, Mr. Willis 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 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 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

Brian Fleming, Esq. SPR21/2725 Page 2 October 29, 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. 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. Willis contends that the withheld documents “are not attorney- client privileged documents.” He argues that “[i]t was expected that among other exemptions, attorney-client privilege would be claimed by simply claiming that DDS staff and the DDS Legal Department were simply providing legal advice.” Mr. Willis requests that the Department “comply with the . . . Public Records Law by verifying, and proving that the information [the Department is] classifying as attorney-client privilege, is lawfully attorney-client privileged information.” The Department’s October 13th Response In its October 13, 2021 response, the Department states that it is withholding responsive records 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 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).

Brian Fleming, Esq. SPR21/2725 Page 3 October 29, 2021 Under attorney-client privilege, the Department argues the following: [The Department] is withholding certain responsive records on the basis of the attorney- client privilege. These documents constitute attorney-client communications and there has been no waiver of that privilege. . . [The Department] is providing a Privilege Index identifying documents subject to the attorney-client privilege. The Department goes on to provide an “Index of Documents Withheld from Production Due to Attorney‐Client Privilege,” listing 27 documents. The Department provides the date, the sender, all recipients, and the subject matter and description of each document, including a brief description of the basis for claiming the privilege. Where the Department has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, I find the Department has met its burden in in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Willis is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, - ~ , - · - . . ,. - •' Rebecca S. Murray Supervisor of Records cc: Wayne Willis