Scott Farmelant v. Department of Public Utilities (SPR 20222011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 16, 2022 SPR22/2011 Patrick M. Houghton, Esq. Records Access Officer Department of Public Utilities One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: 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].” Previous Appeal This request was the subject of a previous appeal. See SPR22/1787 Determination of the Supervisor of Records (August 16, 2022). In my August 16th determination, I ordered the Department to clarify its claims under Exemption (a) of the Public Records Law and under the attorney-client privilege. Subsequently, the Department responded on August 29, 2022. Unsatisfied with the Department’s response, Attorney Michalowski 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). 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. 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

Patrick M. Houghton, Esq. SPR22/2011 Page 2 September 16, 2022 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, Attorney Michalowski contends that “there is nothing confidential about the insurance policy.... Furthermore, the Department made no effort to redact the ‘policy number,’ the only information it deems confidential, and produce the balance of the insurance policy.” Additionally, he requests this office conduct an in camera review of the materials withheld pursuant to the attorney-client privilege. The Department’s August 29th Response In its August 29, 2022 response, the Department cites Exemption (a) of the Public Records Law, G. L. c. 25, § 5D, and the attorney-client privilege, for redacting and withholding responsive records. 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.

Patrick M. Houghton, Esq. SPR22/2011 Page 3 September 16, 2022 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. G. L. c. 25, § 5D. In its August 29th response, the Department states that it “redacted the carrier’s insurance policy number pursuant to G.L. c. 25, § 5D,” and argues the following: In this case, the Department requires certain information in connection with an application for a certificate to operate so that it can assess whether to grant the application. This information includes the carrier’s insurance policy number, which the Department considers confidential information because it is a unique identifier that the carrier would use to make claims on its insurance policy. This information would not otherwise be disclosed. Thus, the Department exercised its discretion to keep this limited information confidential and restrict its release. Where the Department has explained how the carrier’s insurance policy number is the type of information contemplated under G. L. c. 25, § 5D, I find that the Department may properly redact the carrier’s insurance policy number under Exemption (a) and the statute cited above. However, while the Department may properly redact the carrier’s insurance policy number, it is unclear how Exemption (a) and G.L. c. 25, § 5D would operate to withhold the insurance policy in its entirety. The Department must explain whether segregable portions of the policy can be provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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

Patrick M. Houghton, Esq. SPR22/2011 Page 4 September 16, 2022 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 August 29th response, the Department provides detailed list of seven sets of email communications that it withheld pursuant to the attorney-client privilege. For each set of email communications, the Department includes the names and positions of the authors and recipients, the date, the substance, and the grounds upon which it claims the privilege. Based on the information provided in the Department’s response, I find that the Department has met its burden to withhold the communications listed in its August 29th index pursuant to the attorney-client privilege. 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