Luke G. Liacos v. Department of Labor Standards (SPR 20221229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2022 SPR22/1229 Rontear Farmer, Esq. General Counsel Department of Labor Standards 19 Staniford Street, 2nd Floor Boston, MA 02114 Dear Attorney Farmer: I have received the petition of Attorney Luke Liacos on behalf of Bricklayers and Allied Craftsmen Local No. 3 (Local 3) appealing the response of the Department of Labor Standards (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2022, Local 3 requested various categories of records relating to a “December 17, 2021 ‘Appropriate Job Classifications’ opinion letter.” The Department responded on May 10, 2022, providing numerous responsive records, and citing Exemption (d) of the Public Records Law and the attorney-client privilege to withhold others. See G. L. c. 4, § 7(26)(d). Unsatisfied with the Department’s response, Attorney Liacos appealed, and this case was opened as a result. In a letter on June 1, 2022, the Department reiterates its claims under Exemption (d) and the attorney-client privilege, and also cites Exemption (e) of the Public Records Law for withholding two documents. 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 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

Rontear Farmer, Esq. SPR22/1229 Page 2 June 9, 2022 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 Response In its May 10, 2022 response, the Department provides various records responsive to the request. The Department also states that it is withholding others “under M.G.L. c. 4, § 7, cl.26(d) and/or attorney-client privilege.” In a letter on June 1, 2022, the Office also cites Exemption (e) of the Public Records Law for withholding two opinion letter drafts. See G. L. c. 4, § 7(26)(e). 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. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of 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). Id. 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. With regard to two drafts of an opinion letter, the Department argues the following:

Rontear Farmer, Esq. SPR22/1229 Page 3 June 9, 2022 If the deliberative process privilege is to protect the public’s interest in accurate and complete statements of agency positions, an agency must be left to make such changes outside of the public spotlight.” [AFGE v. U.S. Dept. of HHS, 63 F. Supp. 2d 104 (D. Mass 1999)] Thus, while the final opinion letter, the public draft and the evidence and authorities relied on in reaching that opinion are public records and were produced by DLS, the Director’s earlier, personal, unshared drafts are not. DLS maintains that those interim, drafts by the Director are both pre-decisional and deliberative as they constitute documents prepared in order to assist DLS in arriving at its decision and reflect the consultative process and are thus exempt from disclosure under M.G.L. c. 4, § 7, cl. 26(d). Please note that, regarding Exemption (d), the Supreme Judicial Court has found that “by its terms, this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete.” Babets, 403 Mass. at 237 n.8. In this case, where the final opinion letter has been issued, the Department has not demonstrated that the deliberative process remains ongoing. Accordingly, I find that the Department has not met its burden to withhold the responsive opinion letter drafts under Exemption (d). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file.

Rontear Farmer, Esq. SPR22/1229 Page 4 June 9, 2022 With regard to the two opinion letter drafts, under Exemption (e), the Department argues the following: These items constitute the personal notes of Director Michael Flanagan and were used only to assist him. In addition to being exempt from disclosure under exemption (d), these are also protected from disclosure under exemption (e), which allows the withholding of “notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.” The two documents in question are personal to Director Flanagan, were used only by him, and were not shared with anyone in the Agency prior to the public records request; following this public records request, these personal documents have been shared only with Director Flanagan’s attorneys. Although the Department has confirmed that the two drafts in question were not shared with others and were not part of a governmental file, it is unclear how the drafts of an opinion letter constitute personal notes. Specifically, it is unclear how such drafts would fall under the category of “notebooks and other materials” contemplated by the statute. See G. L. c. 4, § 7(26)(e). The Department must clarify these matters. 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 May 10th response, the Department provides an index listing the two draft letters discussed above, and approximately 16 emails with attachments for which the Department claims Exemption (d) and the attorney-client privilege. The index includes the date, the names of the authors and recipients, and a brief description of each document. In its June 1st letter, the Department confirmed that the communications were “between the Director of DLS and his

Rontear Farmer, Esq. SPR22/1229 Page 5 June 9, 2022 attorney(s) for the purpose of seeking legal advice” and that no third-parties were included that would have waived the attorney-client privilege. Where the Department has provided the information required under G. L. c. 66, § 10A(a), and confirmed that the privilege has not been waived, I find that the Department may properly withhold the emails and attachments listed in the May 10th index under the attorney-client privilege. Conclusion Accordingly, the Department is ordered to provide Attorney Liacos with a response to the 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 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: Luke Liacos, Esq.