Colman Herman v. Boston Planning & Development Agency (SPR 20222412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2022 SPR22/2412 Teresa Polhemus Records Access Officer Boston Planning and Development Agency One City Hall Square, Floor 9 Boston, MA 02201 Dear Ms. Polhemus: I have received the petition of Colman Herman appealing the response of the Boston Planning & Development Agency (Agency/BRA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 25, 2022, Mr. Herman stated: [A] The City of Boston and the BRA consulted with the Massachusetts State Ethics Commission (“Ethics Commission”) regarding this appointment. The Ethics Commission indicated that, in the proper discharge of his official duties, [a named individual’s] dual appointment as Agency Director and the City of Boston’s Chief of Planning is permitted under applicable law, subject to the filing of appropriate disclosures with his respective appointing authorities. . . [B] Mr. Jemison shall file the appropriate disclosures with his respective appointing authorities; [C] The Agency [BRA] and the City of Boston shall enter into a mutually agreeable cooperation agreement regarding his dual appointment of the Chief of Planning and Agency Director; and [D] The Agency and [a named individual] shall enter into a mutually agreeable appointment agreement regarding his uncompensated position as Agency Director for which he would receive no salary, benefits, per diem reimbursements or other payments, or retirement related creditable service from the Agency. With regard to the above, please provide me with copies of the following[:] [1] Any [and] all communications with the State Ethics Commission … [2] The documents cited in B, C and D above. [3] Any and all other communications related to any and all of the above Matters … 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

Teresa Polhemus SPR22/2412 Page 2 November 7, 2022 The Agency provided a response on October 7, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/2412, 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, § l0A(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. The Agency’s October 7th Response In its October 7, 2022, response, the Agency provided documents and stated, The BPDA exercised one exemption in reviewing your request: Common Law Attorney-Client Privilege: We have withheld 5 emails and 6 attachments based on the attorney-client privilege. The documents withheld are both staff seeking legal advice from agency attorneys or agency attorneys providing legal advice. The request for legal advice was made upon the expectation of confidentiality by the BPDA as client. Disclosure of the documents withheld would be a waiver of the attorney client privilege, and as client the BPDA does not intend to waive its privilege. The privilege log, which is included with the documents, satisfies the disclosure requirements of Massachusetts law, as it includes “the names of the author and recipients, the date, the substance of such record,” and this response satisfies a description of “the grounds upon which the attorney client privilege is being claimed.” See G. L. c. 66, § 10A(a); 950 CMR 32.06(3)(d). Current appeal In his appeal, Mr. Herman states, “… the BRA claimed attorney-client privilege. In doing so, it provided a privilege log, but the log is deficient in that it contains such vague things under ‘Subject Matter’…”

Teresa Polhemus SPR22/2412 Page 3 November 7, 2022 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 (2017); see also Hanover Ins. Co. v. Rapa & 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 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 Agency is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Upon review, the Agency must clarify the substance of the record of the privilege log and provide further detail. Conclusion Accordingly, the Agency is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman