Laura H. Ortiz v. Attorney General's Office (SPR 20230816)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2023 SPR23/0816 Lorraine A.G. Tarrow, Esq. Assistant Attorney General 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. See 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); SPR22/2436 Determination of the Supervisor of Records (November 10, 2022 and December 27, 2022) and SPR22/2957 Determination of the Supervisor of Records (January 11, 2023). In my January 11th determination, I found that the AGO was to provide a privilege log that includes the names of the author and recipients in accordance with G. L. c. 66, § 10A(a). The AGO responded on January 26, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/0816, 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. SPR23/0816 Page 2 May 10, 2023 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 January 26th response In its January 26th 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 January 26th response, the AGO stated that the documents withheld pursuant to attorney-client privilege are as follows: [1.] One (1) withheld attorney-client communication; [2.] One (1) redacted internal AGO e-mail to AGO Public Records Officers and AGO Managers; and [3.] The four (4) redacted PowerPoint slides presented to AGO Public Records Officers and AGO Managers. The AGO further advised that it enclosed a supplemental privilege log. The AGO stated that “... the log includes the date of the record; the names of the author/recipients; and, to the extent that is possible without abrogating the privilege, the substance of the record/communication.” With regard to the Power Point presentation, the AGO asserted, “[t]he 4 ‘Best Practices’ PowerPoint slide presentations are also included on the log as they were redacted in accordance

Lorraine A.G. Tarrow, Esq. SPR23/0816 Page 3 May 10, 2023 with the attorney-client privilege (as well as G.L. c. 4, § 7, cl. 26(d). This line item includes the dates of the records and, to the extent that is possible without abrogating the privilege, the substance of the records/communications. However, as stated in our prior responses, these slides were shared via live presentations with AGO public records officers and AGO managerial staff by the AGO’s General Counsel’s Office and were not distributed/used/sent outside of the AGO. The only information we can provide to supplement our prior responses and, to the extent it was not already explained to you, is that all AGO employees who served as public records officers and managerial staff at that time were invited to attend the presentations in-person. We do not have a list of the names of the AGO employees who attended each of these presentations. Consequently, while I am the ‘author’ of these communications, there are no specific names of AGO employee ‘recipients’ for any of these in person presentations to include on the privilege log.” Upon review of the supplemental privilege log, I find the AGO met its burden to withhold the requested records pursuant to attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz