Laura H. Ortiz v. Office of the Attorney General (SPR 20222957)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 11, 2023 SPR22/2957 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 August 23, 2022, Ms. Ortiz requested “…Policy Manuals, memo’s whatever guidance and policies that staff utilized for Public Records Requests, documentation, discussions outside the AGO etc, 2014-present and if applicable 2008-2014.” Previous appeals This request was the subject of previous appeals. See SPR22/2207 Determination of the Supervisor of Records (October 12, 2022) and SPR22/2436 Determination of the Supervisor of Records (November 10, 2022). In my November 10th determination, the AGO was to provide a supplemental response. On December 19, 2022, Ms. Ortiz requested a reconsideration of the November 10th determination. On December 27, 2022, and after another careful and thorough review of the matter, I declined to reverse my findings in the November 10th determination. Subsequently, Ms. Ortiz requested an appeal of the AGO’s November 28, 2022 response. 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 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. SPR22/2957 Page 2 January 11, 2023 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 November 28th response In its November 28, 2022 response, the AGO cited attorney-client privilege to withhold the requested records. 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 stated: [t]he AGO maintains that it properly withheld one memorandum and certain redacted information as protected attorney-client communications, as they consist of the exchange of legal advice between and among Assistant Attorneys General (AAsG) within the AGO. We reiterate that the AAG in the General Counsel’s Office appointed as the Records Access Officer serves as legal counsel to the entire AGO concerning, among other matters, public records access. Along with other AAsG in the General Counsel’s Office, she provides legal advice through written memoranda and in-house trainings/presentations on “Best Practices” related to the AGO responses to public records requests to ensure individual and office-wide compliance with the AGO’s interpretation of the Commonwealth’s public records laws and regulations. The withheld memorandum was sent by the AGO’s General Counsel to AGO public records officers – both legal and non- legal staff – as well as AGO managers. Likewise, the “Best Practices” PowerPoint slides were shared via live presentations with AGO public records officers and AGO managers. In both instances, the AGO staff who received the

Lorraine A.G. Tarrow, Esq. SPR22/2957 Page 3 January 11, 2023 communications all have the common interest of knowing and abiding by these policies. Consequently, the attorney-client privilege is not waived in these circumstances. The AGO further enclosed “a one-page (1) privilege log for the one (1) withheld attorney-client communication; the four (4) redacted PowerPoint presentations given to AGO Public Records Officers and AGO Managers; and the four (4) internal AGO emails to AGO Public Records Officers and AGO Managers inviting them to attend the in-person trainings on the public records law. The log includes for each category of record: the number of records; the date(s); the names of the author(s)/recipient(s); and, to the extent that is possible without abrogating the privilege, the substance of the record(s)/communication(s).” Although the AGO has satisfied the requirements articulated in Suffolk, I find the AGO is to provide a privilege log that includes the names of the author and recipients in accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the Office 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