Open Commonwealth v. Executive Office of Technology Services and Security (SPR 20222857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2022 SPR22/2857 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 OpenCommonwealth.org appealing the response of the Executive Office of Technology Services and Security (Office/EOTSS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 28, 2022, OpenCommonwealth.org requested: [1] Any and all responsive records during the time period beginning October 1, 2021 through the date you respond, which include: [a] Any and all emails between [a named individual] and or the BSEA/DALA and any employee of EOTSS which is/are requesting a search and/or assistance and/or estimates of documents and/or production of documents regarding public records requests made upon the BSEA and/or DALA. [b] Any and all text messages between [a named individual] and or the BSEA/ DALA and any employee of EOTSS which is/are requesting a search and/or assistance and/or estimates of documents and/or production of documents regarding public records requests made upon the BSEA and/or DALA. [c] Any and all written or typewritten documents between [a named individual] and or the BSEA/DALA and any employee of EOTSS which is/are requesting a search and/or assistance and/or estimates of documents and/or production of documents regarding public records requests made upon the BSEA and/or DALA. [d] Any and all voice mail messages or memos between [a named individual] and or the BSEA/DALA and any employee of EOTSS which is/are requesting a search and/or assistance and/or estimates of documents and/or production of documents regarding public records requests made upon the BSEA and/or DALA. On December 13, 2022, the Office responded. Unsatisfied with the response, OpenCommonwealth.org petitioned this office and this appeal, SPR22/2857, was opened as a 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 SPR22/2857 Page 2 December 28, 2022 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 December 13th Response In its December 13, 2022 response, the Office states: After conducting a search of its records, EOTSS has now identified approximately 220 responsive records of communications between EOTSS and BSEA between October 1, 2021, and approximately October 31, 2022. EOTSS notes, however, that these records are communications made (1) in confidence, (2) between the legal staff at BSEA and legal service providers at EOTSS, (3) for the purpose of developing or giving legal advice. As such these records are protected by the attorney client privilege held by BSEA and are not public records subject to inspection (See Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 255-461 (2007)). Attached please find a log of all such privileged records listing the privilege asserted, as well as to/from, subject line, and time stamp information. Please note that, from an abundance of caution, EOTSS has redacted the names of any individual person when they appeared in the subject line of an email listed in the privilege log in order to protect individual privacy as per [Exemption (c)]. Current Appeal In its appeal, the requestor asserts:

Michelle Burwell SPR22/2857 Page 3 December 28, 2022 OpenCommonwealth is aware of communications which are responsive to the original public records request, which are not identified in the attached log and which are also being withheld in their entirety…. Further OpenCommonwealth takes exception to the response sent on December 14, 2022 for the following reasons:  The response states that 220 responsive records were identified, however the log provided only has 195 dated responses identified, leaving 25 responsive records unaccounted for.  The records owner (EOTSS) has the burden of proving the existence of an attorney-client relationship. No such burden has been met, nor has EOTSS addressed this very burden.  The RAO also has the burden of demonstrating 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, No such burden has been either met nor addressed by the response of the RAO.  The RAO also has the burden of demonstrating that any privilege as to these communications has not been waived. Disclosing attorney-client communications to a third party generally undermines the privilege, and 122 of the 195 identified records were sent an[d]/or received by multiple persons who cannot possibly function in an attorney-client relationship. These records are waived as a matter of law. Of the remaining 75 records, many of the communications occur with non- attorney employees of EOTSS and no demonstration of an attorney-client relationship has been presented for the remainder.  The RAO must 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. The RAO has failed to provide any grounds upon which the attorney-client privilege is being claimed for all 195 records outlined in the log. The RAO has improperly redacted words from the log itself.  The RAO has failed to demonstrate any attorney-client relationship, whatsoever, much less those between EOTSS and the BSEA/DALA.  The request specifically seeks emails, text messages, any written communications and any telephonic voice-mail messages, the log presented appears to only contain email entries, the RAO is silent on all other requests.  The request specifically seeks messages which is/are requesting a search and/or assistance and/or estimates of documents and/or production of documents regarding public records requests made upon the BSEA and/or DALA, the RAO has failed to address how such responsive records could possibly be seeking legal advice from an attorney in his or her capacity as such.

Michelle Burwell SPR22/2857 Page 4 December 28, 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 (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). 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. In its appeal, the requestor argues that the Office has not met its burden to prove the existence of an attorney-client relationship. Further, the requestor argues that the Office has not demonstrated 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[.]” In its response, the Office states that “these records are protected by the attorney client privilege held by BSEA.” The Office must provide additional information to demonstrate the existence of an attorney- client relationship between EOTSS and BSEA/DALA. Where the requestor states, “122 of the 195 identified records were sent an[d]/or received by multiple persons who cannot possibly function in an attorney-client relationship” and “[o]f the remaining 75 records, many of the communications occur with non-attorney employees of EOTSS and no demonstration of an attorney-client relationship has been presented for the remainder[,]” it is unclear whether the attorney-client privilege has been waived. See Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (concluding that disclosing attorney- client communications to a third party generally undermines the privilege). The Office must

Michelle Burwell SPR22/2857 Page 5 December 28, 2022 clarify this. Where the requestor argues “[t]he RAO has failed to provide any substance of any of the records, a detailed description of the records, and has failed to provide any grounds upon which the attorney-client privilege is being claimed for all 195 records outlines in the log[,]” the Office must provide additional information regarding these requirements. Additionally, the requestor states that “the log provided only has 195 dated responses identified, leaving 25 responsive records unaccounted for.” In light of this claim, the Office must provide additional information regarding these 25 responsive records. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number).

Michelle Burwell SPR22/2857 Page 6 December 28, 2022 In its response, the Office asserts that it “has redacted the names of any individual person when they appeared in the subject line of an email listed in the privilege log in order to protect individual privacy as per [Exemption (c)].” The Office has not met its burden to redact the responsive records pursuant to Exemption (c). Although the Office states it may redact the names in the responsive records under Exemption (c), the Office has not sufficiently explained its reasoning. It is uncertain how this information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, it is not clear from the Office’s response, whether this information is available from other sources. The Office must clarify these matters. Further, based on the Office’s response, in conjunction with the requestor’s appeal, it is unclear if the Office possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office is ordered to provide the requestor 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 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: OpenCommonwealth.org