Colman Herman v. Department of Conservation and Recreation (SPR 20220912)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2022 SPR22/0912 Michael Tencellent Paralegal Department of Conservation and Recreation 251 Causeway St. 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 March 21, 2022, Mr. Herman requested the “… DCR LARF form.” The Department responded on April 15, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/0912, 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). The Department’s April 15th Response In its April 15th response, the Department cited attorney-client privilege and the work product doctrine to withhold the requested records. 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 SPR22/0912 Page 2 May 2, 2022 Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. The indices shall include 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, § l0A(a). Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open "the question whether opinion work product might no longer be protected once the litigation is concluded," noting that the answer "may depend on the particular circumstances, such as the risk of similar litigation." Id. at 459 n.16. In its response, the Department stated, “[t]he requested document is being withheld under the Attorney Client Privilege and the Work Product doctrine. DCR attorneys maintain and share this document in confidence with agency clients, containing specific questions between the attorney and client, as part of the development of agreements in order to enable the agency client to make full disclosure to counsel of all relevant facts, so that counsel may render fully informed legal advice.”

Michael Tencellent SPR21/2685 Page 3 May 2, 2022 Based upon the Department’s response, I find the Department has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. The Department must satisfy the three factors under Suffolk and provide a privilege log. Further, the Department has not explained how the disclosure of the DCR LARF form is exempt in its entirety pursuant to Exemption (d) and the work product doctrine. As a result, I find that the Department has not met its burden to withhold the requested records. 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 10 business days. A copy of any such response must be provided to this 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

Michael Tencellent SPR21/2685 Page 4 May 2, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kay Lazar