Colman M. Herman v. Department of Conservation and Recreation (SPR 20213014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2021 SPR21/3014 Michael Tencellent Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2021, Mr. Herman requested “. . . copies of any and all communications related to a Boston University professor falling through a staircase in Dorchester near the JFK/UMass transit stop. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes. . . .” Previous appeal This request was the subject of a previous appeal. See SPR21/2788 Determination of the Supervisor of Records (November 4, 2021). In my November 4th determination, I ordered the Department to provide Mr. Herman with a response. Subsequently, on November 12, 2021, the Department provided Mr. Herman with a response, which included responsive records. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR21/3014, 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 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

Michael Tencellent SPR21/3014 Page 2 November 30, 2021 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 Department’s November 12th response In its November 12, 2021 response, the Department provided certain responsive records, but withheld others pursuant to Exemptions (b), (d), and (n) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(b), (d), (n). Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding. G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) -------------------------------- (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed).

Michael Tencellent SPR21/3014 Page 3 November 30, 2021 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters ----------------------- used in the development of government policy are subject to disclosure). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would jeopardize public. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the

Michael Tencellent SPR21/3014 Page 4 November 30, 2021 proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. Under Exemptions (b), (d), and (n), the Department posits “. . . certain information relating to meeting access codes/dial-ins and the like has been redacted in accordance with G.L. c. 4, § 7, cl. 26(b) and 26(n). . . . The records are also exempt from disclosure under M.G.L. c. 4, § 7, cl. 26(d).” The Department’s response did not contain the specificity required in a denial of access to public records. Instead, the Department cites Exemptions (b), (d), and (n) without any further explanation as to the exemptions’ applicability to the redacted records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Consequently, I find the Department has not met its burden to withhold the redacted information from disclosure under the cited exemptions. 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. 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

Michael Tencellent SPR21/3014 Page 5 November 30, 2021 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). The Department asserts, “[it] ha[s] withheld twelve (12) records containing communications and documents exempt from disclosure under the attorney-client privilege including the common interest doctrine.” The Department listed the 12 email communications. In his appeal petition, Mr. Herman states the following: 6) [The Department] claimed attorney-client privilege as a basis for withholding twelve emails, but [its] claim fails for the following reasons. a) It fails to fully comply with note 9 of [Suffolk]. b) It fails to provide the substance of each record. c) The email dated September 14, 2021 from . . . to . . . et al. was not sent or received by a lawyer and is thus not subject to attorney-client privilege. d) The email dated September 13, 2021 from . . . et al. fails to say to whom it was sent. e) The email dated September 15, 2021 from . . . to . . . et al. fails to state the purpose of the email. Although the Department claims the 12 email records are privileged, the Department did not explain how an attorney-client relationship exists between the author and recipients of the communications. Also, it is unclear how the September 14, 2021 email is a communication received from a client during the course of the client’s search for legal advice from an attorney. Further, a privilege log shall include the “substance of such record and grounds upon which the attorney-client privilege is being claimed.” As such, the Department must provide a privilege log in accordance with G. L. c. 66, § 10A(a) for the listed emails. Additional records In his appeal petition, Mr. Herman states “. . . the tragic death of the Boston University professor attracted very extensive media attention, but the responsive records that [the Department] produced contained very little communications involving media outlets.” Based on the above, it is unclear if the Department possesses additional records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Department must clarify this issue. Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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

Michael Tencellent SPR21/3014 Page 6 November 30, 2021 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: Colman Herman