Scott Farmelant v. Department of Public Utilities (SPR 20221787)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2022 SPR22/1787 Carline L. Lemoine Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Ms. Lemoine: I have received the petition of Attorney Mark C. Michalowski, on behalf of Scott Farmelant, appealing the response of the Department of Public Utilities (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 6, 2022, Mr. Farmelant requested “all relevant records regarding applications for ‘Carrier Application - New Passenger Carrier’ submitted by [two named entities].” The Department responded on July 14, 2022 and July 22, 2022, providing multiple records and withholding others. Unsatisfied with the Department’s responses, Attorney Michalowski 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 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

Carline L. Lemoine SPR22/1787 Page 2 August 16, 2022 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 Responses In its July 14, 2022 and July 22, 2022 responses, the Department provides responsive records, citing Exemption (a) of the Public Records Law for redacting the records, and citing the attorney-client privilege for withholding others. See G. L. c. 4, § 7(26)(a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Department cites G. L. c. 25, § 5D, which provides in pertinent part as follows: The department may protect from public disclosure, trade secrets, confidential, competitively sensitive or other proprietary information provided in the course of proceedings conducted pursuant to this chapter. There shall be a presumption that the information for which such protection is sought is public information and the burden shall be upon the proponent of such protection to prove the need for such protection. Where such a need has been found to exist, the department shall protect only so much of the information as is necessary to meet such need.

Carline L. Lemoine SPR22/1787 Page 3 August 16, 2022 G. L. c. 25, § 5D. Under G. L. c. 25, § 5D, the Department argues that “here, certain information, such as a policy number, is redacted pursuant to G.L. c. 25, § 5D, which gives the Department the authority to protect from public disclosure trade secrets, confidential, competitively sensitive, or other proprietary information provided to the Department.” In his appeal petition, Attorney Michalowski contends that the statute cited above does not apply to the Department’s “permitting function under M.G.L.c. 159A, §7 within the Transportation Oversight Division.” He further contends that the Department “failed to offer any evidence that the information (e.g. an insurance policy number?) met its own ‘three-part standard for assessing requests for protective treatment.’” Based on the Department’s response, and the information provided in Attorney Michalowski’s appeal petition, I find it is unclear whether the information redacted by the Department is the type of information contemplated under G. L. c. 25, § 5D. The Department must clarify this. 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 July 22nd response, the Department states that “certain of the withheld documents are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (e.g., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law.” The Department goes on to state that “such documents include the following e-mail documents transmitted between April 21, 2022, and June 7, 2022, as well as e-mail documents transmitted on August 24, 2017, which have not been provided to third parties.” The Department goes on to provide some information regarding the records being

Carline L. Lemoine SPR22/1787 Page 4 August 16, 2022 withheld under the attorney-client privilege, including the authors and recipients, and subject matter. However, the Department provides only a range of dates when the emails were transmitted, rather than the dates of each record. Further, based on the information provided, it is unclear how some of the communications, specifically those concerning edits to a draft certificate, and a discussion on a timeline for submitting documentation, would constitute attorney-client privileged information. Although the Department provides some information regarding these records, I find that in accordance with G. L. c. 66, § 10A(a), the Department must provide “a detailed description of the record[s], 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.” Conclusion Accordingly, the Department is ordered to provide Attorney Michalowski 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, Manza Arthur Supervisor of Records cc: Mark C. Michalowski, Esq. Scott Farmelant