Colman Herman v. Department of Environmental Protection (SPR 20220288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 18, 2022 SPR22/0288 Kathleen Delaplain, Esq. Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received the petition of Colman Herman appealing the response of the Department of Environmental Protection (Department/MassDEP) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2022, Mr. Herman requested “. . . copies of any and all communications related to my inquiries regarding [a named individual] appearing in a sponsored ad…” Subsequently, Mr. Herman modified his request. Previous appeal This request was the subject of a previous appeal. See SPR22/0241 Determination of the Supervisor of Records (February 7, 2022). SPR22/0241 was closed after the Department provided Mr. Herman with a response on February 4, 2022, including responsive records. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR22/0288, was opened as a result. While this appeal was pending, the Department provided a supplemental response on February 7, 2022. 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 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

Rachel Cohen SPR22/0288 Page 2 February 18, 2022 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. Herman states the following: 4) [The Department] redacted one email (p. 121) in its virtual entirety based on attorney-client privilege. But [it] failed to provide a description of the substance of the record. Please order [the Department] to remedy this. 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). In its February 4, 2022 response, the Department explains “[t]he email contains attorney- client privileged communication in connection with the attorney . . . providing legal services for the agency. In particular, the Press Secretary is giving [the attorney] factual information associated with the records request. The communications were made in confidence and the privilege has not been waived. Therefore, the email is protected by the attorney-client privilege.” Based on a review of the redacted email, in conjunction with the above response, I find the Department has met its burden in claiming the attorney-client privilege. Missing emails/records Mr. Herman further states in his appeal petition:

Rachel Cohen SPR22/0288 Page 3 February 18, 2022 5) In . . . email[s] dated January 12, 2022 (p. 52) [and (p. 103)], [a named individual] wrote the following to [two identified individuals]. . . . “GOV’s office wants us to hold on this for now.” . . . But there were no emails to the governor’s office and from the governor’s office in the production. Accordingly, please order [the Department] to produce them. 6) In an email dated January 3, 2022 (p. 87), [a named individual] wrote the following to [named individual]. “Finally, I have shared any of the [identified individual’s] emails . . .” The word “mails” is in plural, yet [the Department] produced only one email from [named individual] (p. 117). Accordingly, please order [the Department] to produce all the other emails. 7) In my public records request for communications, I included the following statement. “If any related communications were conducted via personal devices, they are public records and therefore they must be produced.” It is not clear that these devices were searched for responsive records. . . . In an email correspondence dated February 7, 2022, the Department provided an email communication that is responsive to Item 6 above. In addition, the Department states “. . . in regards to any Governor’s Office communication or any personal devices, MassDEP has done a reasonable search and looked everywhere likely to find responsive records. MassDEP has provided all documentation that we found that are responsive relating to the Governor’s Office. [The Department] note[s] that we are not required to create records in response to a request.” No duty to create records Under the Public Records Law, the Department is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the Department does not possess additional records responsive to Mr. Herman’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed.

Rachel Cohen SPR22/0288 Page 4 February 18, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman