Colman Herman v. Attorney General's Office (SPR 20222926)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2022 SPR22/2926 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 Colman Herman 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 September 23, 2022, Mr. Herman requested “…any and all documents, communications, and/or the like related to the cashless payment system implemented this year at Fenway Park for the period April 27, 2022 to the present.” Prior Appeals The requested records were the subject of prior appeals. See SPR22/2349 Determination of the Supervisor of Records (November 1, 2022) and SPR22/2679 Determination of the Supervisor of Records (December 6, 2022). The AGO responded on December 20, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/2926, 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 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. SPR22/2926 Page 2 January 6, 2022 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 20th response In its December 20, 2022 response, the AGO cited Exemptions (d) and (f) of the Public Records Law and attorney-client privilege to withhold the requested records. Current appeal In his appeal, Mr. Herman advises that the AGO’s claim that the investigation is active and ongoing, “is not supported at all by the evidence … exemptions (d) and (f) are no longer applicable here.” Mr. Herman further contests that the AGO’s attorney-client privilege claim does not comply with the Suffolk case. 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 asserted, “[t]he AGO maintains that the records were properly withheld because any emails and attachments responsive to your request are part of an active and ongoing investigation and therefore, they are exempt from disclosure in accordance with G.L. c. 4, § 7, cl. 26(d) & (f). Because most of the records consist of discussions between and among Assistant Attorneys General and other AGO staff concerning when, or if, certain laws apply in a particular matter, or how public-facing inquiries/statements should be handled, they ultimately reflect an ongoing deliberative process, namely the AGO’s position with respect to law enforcement in the ‘cashless Fenway’ matter, an active and open investigation. The disclosure of these records would taint this policymaking process primarily by inhibiting the candid thinking

Lorraine A.G. Tarrow, Esq. SPR22/2926 Page 3 January 6, 2022 that results in reasoned and legally defensible courses of action in the current matter and similar matters in the future. See G.L. c. 4, § 7, cl. 26(d).” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’t Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its response, the AGO advised that the “…records are properly withheld during an open investigation and therefore, they are exempt from disclosure in accordance with G.L. c. 4, § 7, cl. 26(f) … due to the unique nature of a pending law enforcement investigation, other applicable exemptions and/or privileges that may apply to withhold the records are ancillary to this primary reason for withholding the records. See SPR 19/0049 and 18/731 (in which the Supervisor of Public Records found that the AGO may permissibly withhold records relating to pending investigations under exemption (f)).” The AGO further advised, “… the release to the public of the records at issue, premature to the conclusion of the investigation and any other enforcement action, would prejudice effective law enforcement by: 1) revealing the ongoing nature and course of our open investigation of the ‘cashless Fenway’ matter and divulge legal and other strategies and sources of information, thereby chilling the cooperation of witnesses/potential witnesses, including the target entity; 2) providing the target entity with a roadmap to the AGO’s legal and enforcement strategies, placing the AGO at a disadvantage during an open investigation, as well as for similar investigations in the future; and 3) affording an opportunity for interference with the investigation being conducted by law enforcement. For these reasons, the AGO again maintains that it would not be in the collective public interest to disclose any of the requested records under

Lorraine A.G. Tarrow, Esq. SPR22/2926 Page 4 January 6, 2022 G.L. c. 4, § 7, cl. 26(f).” 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 (2017); see also Hanover Ins. Co. v. Rapa & 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. In its response, the AGO stated, “…emails are also communications between Assistant Attorneys General and other staff that render legal advice, they are also the very type of confidential communications that are protected attorney-client communications, as they consist solely of the exchange of legal advice between and among AAsG within the AGO that were made in confidence and for which the privilege has not been waived.” Based upon a conversation between a Public Records Division staff attorney and an AGO representative, it is my understanding that the AGO is involved in an ongoing investigation with regard to the requested records. To the extent the AGO claims that disclosure would compromise its ongoing investigation, the AGO may permissibly withhold the responsive records under Exemption (f) at this time. Please note, a change in the status of the investigation will affect the applicability of Exemption (f). Consequently, I decline to opine on the AGO’s Exemption (d) and attorney-client privilege claims, supporting non-disclosure of the records. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman