Laura H. Ortiz v. Executive Office of Technology Services and Security (SPR 20222307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2022 SPR22/2307 Michelle Burwell Records Access Officer Executive Office of Technology Services and Security One Ashburton Place, Room 804 Boston, MA 02108 Dear Ms. Burwell: I have received the petition of Laura Ortiz appealing the response of the Executive Office of Technology Services and Security (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2022, Ms. Ortiz requested records relating to a September 20, 2022 public records request with a date range of September 7, 2022 through October 6, 2022. Specifically, Ms. Ortiz requested: [1] all correspondence (including attachments) to/from EOTSS and: Attorney General’s Office, and/or anyone representing the Attorney General’s Office, and/or other on behalf of Attorney General’s Office that discussed our public records request above or records related/responsive in any manner[;] [2] all notes, correspondence within EOTSS and/or EOTSS servers (or other unnamed communication program) that allows staff to communicate, that discussed our public records request above or records related/responsive in any manner; and also in reference to: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office and including EOTSS to EOTSS staff communications regarding the above public records requests in any way[;] [3] all text communication to/from EOTSS that discussed our public records request above or records related/responsive in any manner by EOTSS and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office[;] [4] slack call recordings or messages, or phone log and/or other log for any that discussed our public records request above or records related/responsive in any manner (regardless if called by that name) to/from EOTSS and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office[;] 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

Michelle Burwell SPR22/2307 Page 2 October 26, 2022 [5] Notes from any phone conversations that discussed our public records request above or records related/responsive in any manner between anyone at EOTSS and with anyone at the AGO (please let us know if there were any responsive notes occurring outside of the time arrange we requested so we can modify this…)[.] On October 13, 2022, the Office responded. Unsatisfied with the Office’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/2307, 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. Attorney 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 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 Office’s October 13th Response In its October 13, 2022 response, the Office asserts: EOTSS received your initial public records request on or about 20 September 2022. The request was sent directly to the Records Access Officer, Michelle Burwell, who is an employee of EOTSS’ Office of General Counsel. As described in EOTSS’ 6 October 2022 letter to you, Ms. Burwell and other members of EOTSS’ legal staff conducted a variety of searches for those records and determined that they are not currently in EOTSS’ possession. Between 20 September 2022 and 6 October 2022 EOTSS legal personnel discussed your request via email and voice communications with EOTSS personnel on multiple occasions. The contents of those communications are subject to the attorney-client and/or the attorney work product privilege and as such are not subject to disclosure in response to a public records request. (See DaRosa v. City of New Bedford, 471 Mass. 446 (2015); Suffolk Const. Co. v. Div. of Cap. Asset Mgmt.,

Michelle Burwell SPR22/2307 Page 3 October 26, 2022 449 Mass. 444 (2007).) After querying the EOTSS personnel involved in those intra-EOTSS discussions, EOTSS has determined that no EOTSS personnel discussed your request to EOTSS with any employees or representatives of any other Commonwealth entity. Accordingly, EOTSS has no responsive records subject to disclosure for sections (a)-(e) of your request. 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). The Supreme Judicial Court has differentiated attorney-client privilege from the work product doctrine, explaining that “[t]he work product doctrine . . . limits the discovery of ‘documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney).’” Gen. Elec. Co. v. Dep’t of Envtl. Prot., 429 Mass. 798, 799 n.2 (1999). In Suffolk, the Supreme Judicial Court held that “the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.” Suffolk, 449 Mass. at 448. In addition, the Court “state[d] explicitly that confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Id. at 450. Where the Office has not provided a privilege log with 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 pursuant to G. L. c. 66, § 10A(a), I find the Office has not met its burden to withhold the responsive records under the

Michelle Burwell SPR22/2307 Page 4 October 26, 2022 attorney-client privilege. Attorney Work Product doctrine Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Based on the Office’s response, the Office has not established how the communications constitute work product that may be withheld as contemplated in DaRosa. Specifically, it remains uncertain how the communications were prepared by the Office in anticipation of litigation or for trial. The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Ms. Ortiz with a response to her request in

Michelle Burwell SPR22/2307 Page 5 October 26, 2022 a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Ms. Ortiz may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz