Colman Herman v. Department of Conservation and Recreation (SPR 20221021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 16, 2022 SPR22/1021 Michael Tencellent, Esq. Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Attorney 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 11, 2022, Mr. Herman requested, “copies of any and all communications related to Laz Parking in the files of the Department of Conservation and Recreation for the period January 1, 2020 to the present.” Previous Appeal The records sought by Mr. Herman were the subject of a previous appeal. See SPR22/0835 Determination of the Supervisor of Records (April 22, 2022). There, I ordered the Department to provide Mr. Herman a response. The Department did so on April 29, 2022. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR22/1021, 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 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, Esq. SPR22/1021 Page 2 May 16, 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. 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 April 29th Response In its April 29, 2022 response, the Department provided responsive records but withheld twenty-seven (27) records pursuant to the attorney-client privilege, including the common interest doctrine. The Department explains that, “these [withheld records] are all sent by individuals who are either (a) lawyers providing professional legal services; (b) representatives of the client seeking professional legal services; or (c) individuals gathering information at the request of a lawyer in order to allow that lawyer to provide legal services.” 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 his appeal petition, Mr. Herman states, “[I]tems 4, 5, 13, and 14 did not involve any attorneys and/or paralegals as senders and/or receivers. Thus, these communications are not subject to attorney-client privilege. Accordingly, please order [the Department] to produce these four documents…Moreover, [the Department’s] response [in full] does not [demonstrate that the communications were made in confidence and that the privilege has not been waived].

Michael Tencellent, Esq. SPR22/1021 Page 3 May 16, 2022 While the Department provided index information for the communications that it believes are privileged, it is unclear how the identified communications satisfy the elements of the Suffolk case. Specifically, the Department must clarify how the communications as a whole 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, made in confidence, and not waived. 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 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