Colman Herman v. Department of Conservation and Recreation (SPR 20222714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2022 SPR22/2714 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2022, Mr. Herman requested “…all internal and external communications related to [SPR22/2526]. The external communication include, but are not limited to, communications with the governor’s office and/orl [sic] the Department of Environmental Protection.” On November 21, 2022, the Department provided a response. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR22/2714, 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. 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. 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

Michael Tencellent SPR22/2714 Page 2 December 6, 2022 The Department’s November 21st response In the Department’s November 21, 2022 response, it indicated that it is withholding 25 responsive records pursuant to the attorney-client privilege. 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 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 the Department’s response, it provided a privilege log describing all 25 of the withheld records, including their recipients, the date of the records, and the substance of the record. Further the Department stated, “[t]hese emails or messages are all sent by individuals who are either (a) lawyers providing professional legal services; (b) representatives of the client seeking professional legal services; or (c) individuals gathering information at the request of a lawyer in order to allow that lawyer to provide professional legal services. Accordingly, they are all privileged. See Mass. G. Evid. s. 502(b)(1), 502(b)(4), 502(b)(5).” Based on its November 21st response, I find that the Department has not met its burden in claiming the attorney-client privilege to withhold records from disclosure. Particularly, the Department has not provided the complete information required under G. L. c. 66, § 10A(a). It is additionally uncertain if all the communications were made in confidence and whether the privilege to the communications has been waived. The Department must clarify these matters. Conclusion Accordingly, the Department 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 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 this response to this office at

Michael Tencellent SPR22/2714 Page 3 December 6, 2022 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman