Tim Joness v. Department of Fish and Game (SPR 20221882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2022 SPR22/1882 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/1235 Determination of the Supervisor of Records (June 10, 2022). In the June 10th determination, the Supervisor ordered the Department to clarify whether additional records exist, and to clarify its claims under the attorney-client privilege. Subsequently, the Department responded to Mr. Joness on June 24, 2022. 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 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. SPR22/1882 Page 2 September 6, 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 Department’s June 24th Response In its June 24, 2022 response, the Department cites the attorney-client privilege for redacting two responsive emails. 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 20, 2022 response, the Department redacted the texts of the responsive emails, leaving intact the header information, and thus providing the information required under G. L. c. 66, § 10A(a). In its June 24th response, the Department argues the following concerning one of the individuals included in the emails: Tighe & Bond has provided MassWildlife’s [Division of Fisheries and Wildlife] engineering services for dam projects for the last ten years, and acted as such for both the 2019 dam project and for this Project.... Tighe & Bond’s services also include managing bid processes, including finalizing the specifications and drawings, assembling bid documents, and managing the public process. This public process includes coordinating with MassDOT regarding prequalification requirements, providing electronic distribution of bidding documents, attending pre-bid meetings, reviewing bids, and drafting letters of recommendation for contract awards. MassWildlife’s contact at Tighe & Bond is Mr. Buttrick.... He has been the lead

Tori LaBate, Esq. SPR22/1882 Page 3 September 6, 2022 engineer, project manager, and point of contact on almost all dam projects for MassWildlife for the past 10 years.... He responds on behalf of MassWildlife to concerns raised by the public. His experience and expertise are an integral, if not the most important, part of creating MassWildlife’s list of priority dam projects. Mr. Buttrick is in regular contact with MassWildlife during all aspects of a dam project. Because Mr. Buttrick has worked as an engineer with MassWildlife for many years, is in frequent contact with MassWildlife, is a lead decision maker with respect to dam projects, and holds himself out as a representative of MassWildlife, he is the functional equivalent of an employee of MassWildlife. For this Project, Mr. Buttrick oversaw the development of the Bid Request and realized, after receiving the contractors’ bids, that the Project could face a bid protest from Maverick.... He contacted MassWildlife and together they decided to seek legal advice from Ms. LaBate (DFG’s Assistant General Counsel, as noted above) regarding the possibility of a bid protest from Maverick in the event that MassWildlife disqualified Maverick’s bid and regarding Maverick’s threatened legal action. To provide such advice, counsel relied upon Mr. Buttrick’s engineering expertise, knowledge of the bidding process, and experience with Maverick’s earlier bid. Mr. Buttrick then assisted in formulating the response to Maverick’s bid. In his appeal petition, Mr. Joness contends that “the functional equivalent doctrine [of the attorney-client privilege] does not apply because Tighe & Bond was not hired to assist in the rendition of legal services,” and that “the attorney-client privilege does not apply to communications that are made in the presence of non-necessary agents of the attorney or client.” In an email to this office and the Department on August 26, 2022, Mr. Joness further reiterated his objections to the Department’s claims of attorney-client privilege. Based on the information provided in the Department’s response, I find that the Department has demonstrated that Mr. Buttrick, the contracted engineer, is an agent acting on MassWildlife’s behalf and under its control, providing engineering services to MassWildlife regarding its bidding process. Consequently, I find the Department has demonstrated that the privilege has not been waived, and has met its burden to withhold the responsive emails under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Joness 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).

Tori LaBate, Esq. SPR22/1882 Page 4 September 6, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Timothy Joness