Colman Herman v. University of Massachusetts - President's Office (SPR 20221276)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 14, 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 a separate email from the University. Previous Appeal This request was the subject of a previous appeal. See SPR22/1067 Determination of the Supervisor of Records (May 17, 2022). In my May 17th determination, I ordered the University to clarify its claims of attorney-client privilege. Subsequently, the University responded to Mr. Herman on June 1, 2022. 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 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 June 14, 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. The University’s June 1st Response In its June 1, 2022 response, the University cites the attorney-client privilege and provides Mr. Herman with two redacted invoices, and detailed indices of the redactions. 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). With regard to the redactions in the “Description” column of the invoices, the University indicates that each redaction “provides specific nature of services provided.” Additionally, the University indicates that it has redacted “banking information.” The University argues the following: As it relates to the legal invoices in question, information providing only general descriptions of the work done is not protected by attorney-client privilege. However, information within the documents that reveal motives of either of the joint clients in seeking representation, litigation strategy, or the specific nature of the services provided is redacted. Where the University has explained the substance of these redactions, and the grounds upon which the privilege is based, and where these redactions are narrowly tailored, I find the University has met its burden in making the redactions numbered 2–4 of Invoice # 16784 and the redactions numbered 2–5 of Invoice # 16962.

Sean Regan SPR22/1067 Page 3 June 14, 2022 However, among the redactions listed in its indices, the University includes for each invoice “Specifically named joint client who has not waived privilege.” The University argues the following: [Mr. Herman has] been provided with certain facts - information that a certain University employee required legal advice regarding analysis of tax law changes to deferred compensation. The work done was found to be applicable to executive contracts across the University and inform treatment of such contracts going forward. Therefore, the University became a joint client for purposes of this representation. As noted above, when an agency such as the University claims the attorney-client privilege for redacting or withholding public records, the Public Records Law requires that “the agency or municipality provide a detailed description of the record, including the names of the author and recipients.” G. L. c. 66, § 10A(a). Where the University has apparently redacted the name of one or more recipients from the invoices, I find the University has not met its burden under the Public Records Law. Specifically, the University must clarify the names of the recipients of the invoices. 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 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