Laura H. Ortiz v. Executive Office of Technology Services and Security (SPR 20222533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2533 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/EOTSS) 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: [a] 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[;] [b] 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[;] [c] 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[;] [d] 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 SPR22/2533 Page 2 November 23, 2022 [e] 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…)[.] Previous Appeal This request was the subject of a previous appeal. See SPR22/2307 Determination of the Supervisor of Records (October 26, 2022). In my October 26th determination, I ordered the Office to provide Ms. Ortiz with a response to her request. On November 8, 2022, the Office responded. Unsatisfied with the Office’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/2533, 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 November 8th Response In its November 8, 2022 response, the Office asserts that it is withholding some responsive records under the attorney-client privilege. The Office asserts: 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. A search of email communications revealed a total of forty-one (41) messages between the three EOTSS personnel who worked on this matter. All three of these EOTSS employees work in the Office of General Counsel; two are attorneys and one is a paralegal. In addition to these written

Michelle Burwell SPR22/2533 Page 3 November 23, 2022 communications, the two attorneys also communicated verbally via Microsoft Teams on Thursday, September 22, 2022, Friday, September 30, 2022, and Thursday, October 6, 2022, at which times they discussed, among other subjects, your request. EOTSS asserts that all of these communications were: (1) confidential; (2) within the Office of General Counsel at EOTSS; and (3) made for the purpose of receiving information from or offering legal advice to EOTSS. EOTSS has not waived its attorney-client privilege and asserts that all of these communications are protected from disclosure…. The Log contains a list of sixty-three responsive records, including four .pdf files, one .docx file, fifty-eight (58) email communications. It also lists three relevant Microsoft Teams communications (there are no recordings of these voice communications). Each entry in the Log incudes metadata such as the author, recipients, date, and privilege asserted, if any, with regard to the contents of each record. Other than the eight records that do not have “date sent” metadata, these records are listed in chronological order. Of the sixty-six (66) items listed in the Log, EOTSS asserts its attorney-client privilege to withhold the contents of forty- four (44) communications. These privileged communications are indicated by the words “Privileged Type/Attorney Client” in the “Label” column. EOTSS believes that its assertion of its Attorney-Client privilege claim is dispositive in this matter and at this time EOTSS does not assert, but also does not waive, any attorney work-product privilege that might attach to any of these records. The Log also lists twenty-two (22) records over which EOTSS does not assert any privilege. These records, including four .pdf files, one .docx file, and seventeen (17) email communications, were identified as responsive in EOTSS’ internal records search and have been listed for convenience (they each have a darker background color to make them visually distinct). The actual contents thereof have not been included in this supplemental response because each of them was received from or sent to Laura Ortiz (at ladeslortz@yahoo.com) or OpenCommonwealth (at info@opencommonwealth.org). EOTSS therefore believes that the requestor is already in possession of these records in their entirety. EOTSS can forward these records to an alternative email address upon 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

Michelle Burwell SPR22/2533 Page 4 November 23, 2022 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). Where the Office indicates that the responsive records regarding this request are confidential communications, made within the Office of the General Counsel at EOTSS, and made for the purpose of receiving information from or offering legal advice to EOTSS, and EOTSS has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Office has met its burden to withhold responsive records under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz