Colman Herman v. University of Massachusetts - President's Office (SPR 20221067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 17, 2022 SPR22/1067 Sean Regan University of Massachusetts President’s Office One Beacon Street, 31st Floor Boston, MA 02108 Dear Mr. Regan: I have received the petition of Colman Herman appealing the response of the University of Massachusetts (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 22, 2022, Mr. Herman requested “copies of any and all invoices submitted by the firm that conducted the tax analysis cited” in an email from the University. The University responded on May 6, 2022, providing responsive records in redacted form, and citing attorney-client privilege for the redactions. Unsatisfied with the University’s response, Mr. Herman 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. Att’y 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 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 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

Sean Regan SPR22/1067 Page 2 May 17, 2022 custodian must provide the responsive records. The University’s May 6th Response In its May 6, 2022 response, the University provides Mr. Herman with redacted records and states that “the records have been redacted under 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). In its response, the University has not provided the specificity required in order to deny access to public records. Although the redacted invoices include the names of the authors and the dates, the University appears to have redacted the names of the recipients. Additionally, it is unclear how information such as the “Description” column may be redacted pursuant to the attorney-client privilege. The University must clarify these matters. In his appeal petition, Mr. Herman also expresses concern that the University’s response did not include information on the right of administrative appeal. Please be advised that in accordance with 950 C.M.R. 32.06 (3)(c)(8), a “written notice of denial shall include . . . a statement informing the requester of the right of administrative appeal to the Supervisor under 950 CMR 32.08(1) and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court.” Conclusion Accordingly, the University is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this

Sean Regan SPR22/1067 Page 3 May 17, 2022 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman