Laura H. Ortiz v. Executive Office of Technology Services and Security (SPR 20230861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2023 SPR23/0861 Michelle Burwell Records Access Officer Executive Office of Technology Services and Security One Ashburton Place, Room 804 Boston, MA 02108 Dear Ms. Burwell: I have received the petition of Laura Ortiz appealing the response of the Executive Office of Technology Services and Security (Office/EOTSS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2022, Ms. Ortiz requested records relating to a September 20, 2022 public records request with a date range of September 7, 2022 through October 6, 2022. Specifically, Ms. Ortiz requested: a) all correspondence (including attachments) to/from EOTSS and: Attorney General’s Office, and/or anyone representing the Attorney General’s Office, and/or other on behalf of Attorney General’s Office that discussed our public records request above or records related/responsive in any manner[;] b) all notes, correspondence within EOTSS and/or EOTSS servers (or other unnamed communication program) that allows staff to communicate, that discussed our public records request above or records related/responsive in any manner; and also in reference to: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office and including EOTSS to EOTSS staff communications regarding the above public records requests in any way[;] c) all text communication to/from EOTSS that discussed our public records request above or records related/responsive in any manner by EOTSS and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office[;] d) slack call recordings or messages, or phone log and/or other log for any that discussed our public records request above or records related/responsive in any manner (regardless if called by that name) to/from EOTSS and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office[;] 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

Michelle Burwell SPR23/0861 Page 2 May 15, 2023 e) Notes from any phone conversations that discussed our public records request above or records related/responsive in any manner between anyone at EOTSS and with anyone at the AGO (please let us know if there were any responsive notes occurring outside of the time arrange we requested so we can modify this…)[.] Previous Appeals This request was the subject of previous appeals. See SPR22/2307 Determination of the Supervisor of Records (October 26, 2022), SPR22/2533 Determinations of the Supervisor of Records (November 23, 2022; December 15, 2022, January 23, 2023). In my January 23rd determination, I ordered the Office to provide more information regarding the requirements of the attorney-client privilege it was asserting. In particular, I ordered the Office to provide additional information regarding the description and substance of the record and the grounds to claim the attorney-client privilege. In addition, I ordered the Office to clarify whether the attorney-client privilege had been waived in light of Ms. Ortiz’s claims. I also stated that it was unclear why responsive records that the Office was not claiming to withhold under the attorney- client privilege were included in the privilege log. Further, I noted it was unclear why these responsive records listed could not be provided to Ms. Ortiz. On February 3, 2023, the Office responded. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/0861, was opened as a result. While this appeal was pending, the Office provided a supplemental response dated May 10, 2023. 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 or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Michelle Burwell SPR23/0861 Page 3 May 15, 2023 The Office’s February 3rd and May 10th Responses In its February 3, 2023 response, the Office asserts: EOTSS has provided the date sent, sender and addressee information, and subject line metadata of each privileged email, as well as the filenames and extensions of non- email records. EOTSS believes that the subject line data for these email communications, combined with the author/recipient metadata, provides a sufficiently detailed description of the communications at issue to satisfy the statutory language cited by the Supervisor…. EOTSS also indicated that the email was both responsive to Laura Ortiz’ October 6 request and subject to the attorney-client privilege. EOTSS further provided alongside the log a letter with additional information about those communications (e.g., a clear statement that all of the privileged communications in the log were between EOTSS legal personnel and were made for the purpose of rendering legal advice to EOTSS). EOTSS truly does not know what other information is necessary to evaluate its assertion of privilege. If so instructed by the Supervisor, EOTSS could add a new column to the privilege log summarizing the data in all other columns as had been done in this response. EOTSS estimates that it could produce a modified privilege log in five business days or less. There are also five non-privileged records listed in the log that do not have date sent or authorship information. As is indicated in the log and in the response from EOTSS to which the log was attached, these records were, insofar as EOTSS knew at the time, already in the possession of Laura Ortiz…and were included for the convenience of the requestor…. As stated by EOTSS in prior responses, privilege has not been waived and every participant in a privileged communication is either legal staff or essential, non- attorney agents of legal staff or clients. See, e.g., EOTSS’ November 7, 2022, Supplemental Response to Laura Ortiz, p. 1. Furthermore, as stated in those prior responses, all privileged communications were made for the purpose of developing or providing legal advice. When records requests are submitted to EOTSS there is an internal process to identify, review, redact, and produce (or withhold as exempt) responsive records. That process frequently involves communications between EOTSS’ legal staff and its eDiscovery staff; and where these communications are made by email they are preserved. The process works similarly when legal staff at a sister agency receives eDiscovery services from EOTSS’ eDaaS team. These communications are confidential discussions between legal staff and essential, non- attorney personnel made for the purpose of developing or providing legal advice. They are clearly privileged and not subject to disclosure in response to a public records request. Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 616 (2007)….

Michelle Burwell SPR23/0861 Page 4 May 15, 2023 As stated in EOTSS’ November 8, 2022, response to Laura Ortiz, some non- privileged records were included in the log for the convenience of the requester (I.e., EOTSS’ reviewers believed that a comprehensive list of privileged and non- privileged communications might be useful to the requestor). These non-privileged communications were clearly identified in the log to minimize confusion. As further stated in that November 8, 2022, response, the actual contents of those non-privileged communications were not withheld from Laura Ortiz. They were simply not included with the log because EOTSS believed that Laura Ortiz was already in possession of them. If Laura Ortiz is in possession of some, but not all, of these non-privileged communications then EOTSS would respectfully ask that they specifically identify which records should be produced to them. In its May 10, 2023 supplemental response, EOTSS states that: Furthermore, EOTSS notes that in the time since EOTSS' February 3, 2023, response in this matter it has become engaged in litigation in the Suffolk County Superior Court with regard to certain public records requests from OpenCommonwealth.org, including those requests that were the subject of the Supervisor's own determination in the matter of SPR22-2857. This Superior Court litigation (Friedman v. EOTSS, Case No. 2384-CV-00496) turns in part on issues extremely similar those raised by Ms. Ortiz here. The similarity of the appeals by Laura Ortiz and OpenCommonwalth.org is demonstrated by Laura Ortiz’s December 28 appeal for second reconsideration in SPR22-2533, which raised exactly the same issues cited in SPR22-2857 and even used language copied directly from OpenCommonwealth.org’s December 13, 2022, appeal in SPR22-2857. EOTSS has no desire to litigate the same issues simultaneously in two different forums, and therefore requests that any Supervisor consideration of this matter be tolled at least until Friedman v. EOTSS reaches a dispositive judgment with regard to the privilege arguments raised by both OpenCommonwealth.org and Ms. Ortiz. 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 (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.

Michelle Burwell SPR23/0861 Page 5 May 15, 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 not inspect the record but 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). Where the Office indicates that the responsive records regarding this request are confidential communications, made between EOTSS legal personnel, made for the purpose of rending legal advice to EOTSS, and the privilege has not been waived, and where EOTSS has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Office has met its burden to withhold responsive records under the attorney-client privilege. However, based on the Office’s response, in conjunction with Ms. Ortiz’s appeal, it is unclear why the responsive records listed in the privilege log that are not being withheld pursuant to the attorney-client privilege cannot be provided to Ms. Ortiz. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Office is ordered to provide Ms. Ortiz with a response to her request in a manner consistent with this order, 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 the response to this office at pre@sec.state.ma.us. Ms. Ortiz may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz