Laura H. Ortiz v. Attorney General's Office (SPR 20222868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2022 SPR22/2868 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Laura Ortiz appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2022, Ms. Ortiz requested the following records: A. What records are there that are responsive to AGO to AGO correspondence that discussed this OML22-199 case in any way? We would like a copy of any that are responsive to [named persons] at the AGO either as the sender or recipient … but assume the Timeline: 8/29/22-11/2/22 B. [P]ublic record we seek that were not located or retrieved etc, and to further understand how AGO conducts its records searches, as well as if we will need to modify it after we receive this AGO RAO superior knowledge within the AGO’s location and retrieval capabilities, therefore we need to have AGO assist us with answering under M.G.L. c. 66, § 10(b)(vii) proactively … The AGO responded on December 5, 2022. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR22/2868, 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). 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

Lorraine A.G. Tarrow, Esq. SPR22/2868 Page 2 December 29, 2022 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 AGO’s December 5th response In its December 5, 2022 response, the AGO advised that it could not respond to part B of the request and stated, “[t]he Public Records Law, G.L. c. 66, § 10, provides for the identification, review, and disclosure of records that exist and are in the AGO’s custody. It does not require the creation of a record and consequently, does not contemplate the answering of questions or requests styled as interrogatories that involve the creation of a narrative or an arrangement of records in order to be responsive.” The AGO further advised, “[i]n response to Part A of your request, we enclose forty-one (41) pages of records that may be responsive to your request …” The AGO provided four internal AGO emails, withheld one email in its entirety and cited Exemption (d) of the Public Records Law in support of the redactions/withholding of the emails. The AGO also claimed attorney-client privilege to withhold the requested records. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, §7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the AGO stated, these emails have been redacted in accordance with G.L. c. 4, § 7, cl. 26(d), insofar as they contain intra-agency, i.e., internal, communications between Assistant Attorneys General that reveal legal and policy positions of the AGO. These

Lorraine A.G. Tarrow, Esq. SPR22/2868 Page 3 December 29, 2022 communications ultimately reflect an ongoing deliberative process, namely the AGO’s legal position and policy with respect to the Open Meeting Law in general, as well as the AGO’s techniques and procedures for investigating and resolving Open Meeting Law complaints, all of which continues to evolve along with the law. The disclosure of these communications would taint this deliberative process by inhibiting the candid thinking that results in reasoned and legally defensible determinations, now and in the future.” The AGO further stated, “… we have withheld one (1) record in its entirety—a draft version of determination letter OML 2022-199—in accordance with G.L. c. 4, § 7, cl. 26(d), as this record possesses a deliberative or policymaking character in that it reflects thought processes regarding an ongoing deliberative process, i.e., the development of reasoned courses of action to investigate and resolve Open Meeting Law enforcement matters, the disclosure of which would inhibit current and future deliberations and undermine the AGO’s ability to evaluate future matters.” Upon review, it is unclear if the redacted emails and withheld email contain any reasonably completed factual information that can be provided. The AGO is asked to clarify. 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). In its response, the AGO advised, “ [a]lthough the AGO maintains that it may properly redact/withhold these records under the deliberative/policymaking exemption to the public records law, G.L. c. 4, § 7, cl. 26(d), because they are internal communications between Assistant Attorneys General that render legal advice, they are also the very type of confidential communications concerning, and decisions resulting in, one course of action over another and are the very communications that are protected under the attorney-client privilege as articulated in Suffolk Const. Co., Inc. v. Division of Capital Asset Management., and Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc.” The AGO must clarify if the responsive records satisfy the requirements articulated in Suffolk. Additionally, I find the AGO is to provide a privilege log that includes the names of the

Lorraine A.G. Tarrow, Esq. SPR22/2868 Page 4 December 29, 2022 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). With regard to Ms. Ortiz’s Part B request, I find that the basis of Ms. Ortiz’s appeal is unclear. Ms. Ortiz is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, the AGO is to provide Ms. Ortiz with a response to the request, provided in a manner consistent with 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: Laura Ortiz