Tim Joness v. Department of Fish and Game (SPR 20221235)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2022 SPR22/1235 Tori LaBate, Esq. Assistant General Counsel Department of Fish and Game 1 Rabbit Hill Road Westborough, MA 01581 Dear Attorney LaBate: I have received the petition of Timothy Joness of Maverick Construction Management Services, Inc. (Maverick) appealing the response of the Department of Fish and Game (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 6, 2022, Mr. Joness requested seven categories of records. The Department responded on May 20, May 23, and May 25, 2022, providing numerous responsive records, and citing the attorney-client privilege for redacting certain records. Unsatisfied with the Department’s response, Mr. Joness 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. 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

Tori LaBate, Esq. SPR22/1235 Page 2 June 10, 2022 Current Appeal In his appeal petition, Mr. Joness contends that the Department “has improperly claimed attorney-client privilege on communications disclosed to a third party. Further, Maverick believes that the initial response to its request indicates that not all documents were provided to Maverick.” Specifically, he argues that he should be provided with the following: - the full text of e-mail messages which were improperly redacted and marked “Attorney client Privileged”. . . . These e-mail messages were disclosed to a third party (. . . an engineer with Tighe and Bond) so privilege cannot be claimed. - meeting minutes or notes taken for two bid evaluation meetings held on April 21 & April 25, 2022. . . . Maverick believes that it is highly unlikely that no minutes or notes were generated, be they formal or informal, from these two meetings. The Department’s Response In its May 20, 2022 response, the Department provides responsive records to Mr. Joness and states that certain records were redacted pursuant to the attorney-client privilege. In its May 23, 2022 response, the Department clarifies the contents and organization of previously provided records, and reiterates that the Department “will continue to withhold the information redacted under Attorney-Client privilege.” Records in Existence Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, 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). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, several records included with Mr. Joness’ appeal petition indicate that meetings were held within the Department. In its May 25, 2022 response, the Department states that it does “not have any meeting minutes.” In a phone conversation with this office on June 2, 2022, an attorney for the Department explained that the meetings in question were internal meetings and that no minutes were produced. However, where Mr. Joness specifies that he also seeks “any notes taken by any participant in the Microsoft Teams Meetings,” it remains unclear if any other type of notes were created at the meetings in question, and if so whether such notes are being properly withheld under the Public Records Law. The Department must clarify this.

Tori LaBate, Esq. SPR22/1235 Page 3 June 10, 2022 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 20th response, the Department claims that “redactions were applied in the correspondence produced for Requests 2 and 3 to protect attorney-client privilege.” In this case, although the texts of the communications were redacted, the Department left intact the email header information which includes the names of the authors and recipients, the dates, and the subject of each email. Thus the office has provided the information required under G. L. c. 66, § 10A(a). However, based on the names and email addresses included in the email headers, it is unclear whether the privilege as to these communications has been waived. Specifically, it is unclear whether the emails were disclosed to third parties. The Department must provide additional information concerning the individuals in the email headers, their relationship with the Department and its attorneys, and whether the attorney-client privilege was waived by disclosing the emails to those individuals. Conclusion Accordingly, the Department is ordered to provide Mr. Joness 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 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Tori LaBate, Esq. SPR22/1235 Page 4 June 10, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Joness