Concerned Parents v. Office of the Attorney General (SPR 20230047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2023 SPR23/0047 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 Concerned Parents of MA 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, the requestor sought the following public records for March 1, 2021: Emails from the following people sent to your office the Attorney General of MA, And anything they sent with their emails to you . . . or any Attorney General for Delaware The AGO responded on December 5, 2022. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/0047, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld 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. SPR23/0047 Page 2 January 24, 2023 or redacted portion of the responsive record. The AGO’s December 5th response In its December 5, 2022 response, the AGO provided fourteen (14) pages of records. The AGO cited Exemptions (d) and (f) of the Public Records Law and attorney-client privilege in support of the redactions and withholding of 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 asserts, “…these records were redacted in accordance with G.L. c. 4, § 7, cl. 26, insofar as they contain: (d) inter-agency communications (ie., between state attorneys general offices) that relate to an ongoing deliberative process, namely the AGO’s position with respect to law enforcement and an ongoing multi-state litigation matter, docket number 19-23649 (Bankr. S.D.N.Y.), the disclosure of which would taint this policymaking process by inhibiting the candid thinking that results in reasoned and legally defensible courses of action, now and in the future …” Based on the above, it is unclear whether the withheld records contain factual information that can be segregated from the records. The AGO is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Exemption (f) Exemption (f) permits the withholding of:

Lorraine A.G. Tarrow, Esq. SPR23/0047 Page 3 January 24, 2023 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 the requested records are “. . . investigatory materials that reveal confidential investigative techniques and procedures. We interpret this to mean any Deputy (Assistant) Attorney General for Delaware concerning the multistate litigation that 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’s response did not provide supporting information on how the investigative process is ongoing. It is additionally uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (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., 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).

Lorraine A.G. Tarrow, Esq. SPR23/0047 Page 4 January 24, 2023 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 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 its response, the AGO opined, “… the records constitute communications protected by the attorney-client privilege and the common interest doctrine consistent with the holdings in Suffolk Const. Co., Inc. v. Division of Capital Asset Management and Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc. as they are communications between state Assistant Attorneys General regarding a pending multi-state lawsuit, as referenced above, handled jointly by various state Attorneys General, including Massachusetts. Assistant Attorneys General are aligned with particular divisions which handle certain target investigations and enforcement matters, some of which are made public when a lawsuit is filed against a target entity and others which remain confidential. For this reason, the names of the Assistant Attorneys General as well as the subject matter have been redacted to protect the confidentiality of the joint investigation between multiple law enforcement agencies. Disclosure of such information would cause a “chilling effect” on our ability to cooperate with other states on various enforcement matters that impact the citizens of the Commonwealth, now and in the future.” 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 author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed, as required under G. L. c. 66, § 10A(a). Conclusion Accordingly, the AGO is to provide the requestor with a response to the request, provided in a manner consistent with 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: Concerned Parents of MA