Laura H. Ortiz v. Attorney General's Office (SPR 20230014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2023 SPR23/0014 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 October 22, 2022, Ms. Ortiz requested, “[a]ny emails & attachments for AGO email server address: @mass.gov from: District of Columbia Attorney General Office @dc.gov Timeline for [1]: 3/1/21.” Previous appeal This request was the subject of a previous appeal. See SPR22/2639 Determination of the Supervisor of Records (December 1, 2022). The AGO responded on December 15, 2022. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/0014, 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. SPR23/0014 Page 2 January 19, 2023 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 15th response In its December 15, 2022 response, the AGO cited Exemptions (d) and (f) of the Public Records Law, work product and attorney-client privilege in support of the redactions, as well as withholding certain responsive records. Current appeal In her appeal, Ms. Ortiz asserts “… we take exception to AGO’s response and its custodial privilege log for the following reasons … AGO has the burden of proving the existence of an attorney-client relationship. No such burden has been met, nor has AGO addressed this very burden. The RAO also has the burden of demonstrating that those communications ninety- six (96) pages of records – constituting emails from the District of Columbia Attorney General’s Office (DC AGO) to our office on March 1, 2021 - (10) emails and two (2) attachments and also withheld in their entirety nine (9) emails] 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 …” 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’y 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 it was withholding, “investigatory information that would reveal confidential investigative techniques, procedures, and sources of information that

Lorraine A.G. Tarrow, Esq. SPR23/0014 Page 3 January 19, 2023 are necessarily compiled out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The AGO opined, “…the release to the public of the redacted information/withheld emails at issue would prejudice effective law enforcement by: 1) revealing the nature and course of our investigations and divulging legal and other strategies and sources of information, thereby chilling the cooperation of witnesses/potential witnesses, including the target entities as well as other law enforcement agencies, as explained above; 2) providing target entities with a roadmap to the AGO’s legal and enforcement strategies in multistate enforcement matters, placing the AGO at a disadvantage for current and future similar investigations; and 3) affording an opportunity for interference with the investigations being conducted by law enforcement.” The AGO further opined, “[f]or these reasons, the AGO maintains that it would not be in the public interest to disclose the limited redacted information or any of the emails withheld under G.L. c. 4, § 7, cl. 26(f). Moreover, to confirm or deny the existence of or provide any more specificity about the withheld emails would compromise the AGO’s law enforcement responsibilities to the same extent as disclosing any of the records themselves, and therefore would undermine the protections afforded by the public records exemptions.” 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). Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact”

Lorraine A.G. Tarrow, Esq. SPR23/0014 Page 4 January 19, 2023 work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. In its response, the AGO asserted that “… nine (9) of the emails were properly withheld under G.L. c. 4, § 7, cl. 26(d) insofar as they constitute inter-agency communications between Assistant Attorneys General of the DC AGO and our office that are deliberative or policymaking in nature and relate to an ongoing deliberative process, namely the AGO’s position with respect to law enforcement which relate to ongoing multi-state investigations and litigation matters, the disclosure of which would taint this multistate law enforcement process by inhibiting the candid thinking that results in reasoned and legally defensible courses of action now and in the future.” 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 further advised, “… the attorney-client privilege is not waived when confidential communications are shared between and among government attorneys and others who have a ‘common interest’ in the matter. Here, the communications were sent between and among Assistant Attorneys General and other AGO staff in Massachusetts as well as other states regarding various multistate enforcement matters, all working together (i.e., having a common interest) in their authority to protect the citizens of their respective states on a particular matter. Consequently, the attorney-client privilege is not waived in these circumstances.” 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. In the prior determination, I found that the AGO has met its burden to withhold the responsive records under Exemption (d) and/or attorney work product. See SPR22/2639. Consequently, I decline to opine on the applicability of attorney-client privilege to withhold the requested records.

Lorraine A.G. Tarrow, Esq. SPR23/0014 Page 5 January 19, 2023 Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz