Colman Herman v. University of Massachusetts - President's Office (SPR 20221521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2022 SPR22/1521 Sean Regan Records Access Officer 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 Appeals This request was the subject of previous appeals. See SPR22/1067 Determination of the Supervisor of Records (May 17, 2022) and SPR22/1276 Determination of the Supervisor of Records (June 14, 2022). In the June 14th determination, the Supervisor ordered the University to clarify the names of the recipients of the responsive invoices, pursuant to the claim of attorney- client privilege. Subsequently, the University responded to Mr. Herman on June 30, 2022. Unsatisfied with the University’s response, Mr. Herman further 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). 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 SPR22/1521 Page 2 July 18, 2022 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. Current Appeal In his appeal petition, Mr. Herman contends that “it is not sufficient that [the RAO] states the name. [The RAO] must provide [Mr. Herman] with the responsive records with the name unredacted.” The University’s June 30th Response In its June 30, 2022 response, the University indicates the name of the recipient of the two invoices redacted pursuant to the 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). Based on the information provided by the University, it is my understanding that the University complied with the requirements for claiming the attorney-client privilege. Specifically, although portions of the responsive invoices were redacted, the University left intact other information which includes the name of the attorney, the date, and the subject of each invoice. Additionally, in its June 30th response, the University provided Mr. Herman with the name of the recipient.

Sean Regan SPR22/1521 Page 3 July 18, 2022 Between the records produced and the information provided in the June 30th response, I find the University has satisfied its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Sean Regan