Colman Herman v. Boston Planning & Development Agency (SPR 20222459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2022 SPR22/2459 Colin T. Donnelly Public Records Specialist Boston Planning & Development Agency 1 City Hall Square, 9th Floor Boston, MA 02201 Dear Mr. Donnelly: I have received the petition of Colman M. Herman appealing the response of the Boston Planning & Development Agency (Agency) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2022, Mr. Herman requested “…copies of any and all invoices submitted by the law firm of Foley Hoag for preparing an opinion regarding the appointment of a new BRA director.” The Agency provided a response on October 28, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/2459, 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. 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

Colin T. Donnelly SPR22/2459 Page 2 November 15, 2022 The Agency’s October 28th response In its October 28, 2022 response, the Agency claimed attorney-client privilege to redact the requested records. Current appeal In his appeal, Mr. Herman advises that the privilege log lacked the required specificity. 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., Inc. v. Div. of Capital Asset Mmgt., 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. The indices shall include 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, § l0A(a). 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 response, the Agency stated, “[t]he redacted portions of the record represent both agency attorneys seeking legal advice from outside counsel or outside counsel providing legal advice. The request for legal advice was made upon the expectation of confidentiality by the BPDA as client. Disclosure of the redacted portions would be a waiver of the attorney-client privilege, and as client the Agency does not intend to waive its privilege. Specifically, the redacted portions include details of attorney-client communications and descriptions of attorney work product. The privilege log, which is included with the record, 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.’”

Colin T. Donnelly SPR22/2459 Page 3 November 15, 2022 The Agency also provided a privilege log that stated that “[r]edacted portions of the record include details of attorney-client communications and descriptions of attorney work product.” Based upon the Agency’s response and the privilege log provided, I find the Agency has met its to redact portions of the records under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman