Colman Herman v. Attorney General's Office (SPR 20230886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2023 SPR23/0886 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General General Counsel’s Office One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Colman Herman 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 March 17, 2023, Mr. Herman requested, “... copies of any and all communications related to the referral of SPR22/0393 and SPR22/0395 to the attorney general for the period September 12, 2023 to the present.” Previous appeal This request was the subject of a previous appeal. See SPR23/0633 Determination of the Supervisor of Records (April 18, 2023). The AGO responded on May 2, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/0886, 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 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. SPR23/0886 Page 2 May 17, 2023 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 May 2nd response In its May 2, 2023 response, the AGO provided “one hundred and fifty-five (155) pages of records, consisting of fifty-five (55) emails and seven (7) attachments, that may be responsive to [the] request.” The AGO redacted the responsive records pursuant to Exemptions (d) and (f) of the Public Records Law and attorney-client privilege. 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 asserted, “... the redacted information consists of those discussions between and among Assistant Attorneys General (AAsG) and other AGO staff concerning the status of an ongoing public records law enforcement action, including proposed further action and/or how public inquiries on the pending matter should be handled. This information ultimately reflects an ongoing deliberative process, namely the AGO’s position with respect to a pending public records law enforcement, which continues to evolve and does not terminate on the date a particular enforcement action is or is not taken. The disclosure of this information would taint this policymaking process primarily by inhibiting the candid thinking that results in reasoned and legally defensible courses of action now and in the future.” Exemption (f) Exemption (f) permits the withholding of:

Lorraine A.G. Tarrow, Esq. SPR23/0886 Page 3 May 17, 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 that the “…records are properly withheld during an open investigation and therefore, they are exempt from disclosure in accordance with G.L. c. 4, § 7, cl. 26(f) … due to the unique nature of a pending law enforcement investigation, other applicable exemptions and/or privileges that may apply to withhold the records are ancillary to this primary reason for withholding the records. See SPR 19/0049 and 18/731 (in which the Supervisor of Public Records found that the AGO may permissibly withhold records relating to pending investigations under exemption (f)).” The AGO further advised that the records “... these internal discussions constitute investigatory information, under G.L. c. 4, § 7, cl. 26(f), that is necessarily compiled out of the public view, the disclosure of which would reveal confidential investigative strategies and techniques about this and other ongoing public records enforcement matters and which would so prejudice the possibility of effective law enforcement, both currently and in the future, that such disclosure would not be in the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976).” The AGO further asserted, “release to the public of the redacted discussions at issue, premature to the conclusion of the investigation and any other enforcement action, would prejudice effective law enforcement by: 1) revealing the ongoing nature and course of our open investigation of the public records enforcement matter and divulge legal and other strategies, thereby chilling the cooperation of the records custodian at issue in the matter; 2) providing the records custodian with a roadmap to the AGO’s legal and enforcement strategies, placing the AGO at a disadvantage during an open investigation, as well as for similar investigations in the future; and 3) affording an opportunity for interference with the investigation being conducted by law enforcement.”

Lorraine A.G. Tarrow, Esq. SPR23/0886 Page 4 May 17, 2023 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 (2017); 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. In its response, the AGO stated, “…the eleven (11) email communications between AAG Carrie Benedon and other AAsG who are her supervisors consist solely of the exchange of legal advice between and among AAsG within the AGO, they are also protected under the attorney- client privilege. See Suffolk Const., 449 Mass. 444, 450 (2007) (‘confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.’). The AGO further advised, “... the attorney-client privilege is not waived when confidential communications are shared among government attorneys and other staff who have a ‘common interest’ in the matter. See also Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 616 (2007) (citations omitted) (‘The attorney-client privilege … also protects such statements made to or shared with necessary agents of the attorney or the client, including experts consulted for the purpose of facilitating the rendition of such advice. There is no reason to treat confidential client communications differently when shared with an attorney representing a client having a common interest where the purpose for sharing is to provide a free flow of information essential to providing the best available legal services to the client.’). Here, the communications were sent between AAsG, in each instance seeking and conveying legal advice concerning an open and ongoing public records enforcement matter.” Based upon a conversation between an attorney of the Public Records Division and an AGO representative, it is my understanding that the AGO is involved in an ongoing investigation with regard to the requested records. 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. Please note, a change in the status of the investigation will affect the applicability of Exemption (f). Conclusion Accordingly, I will now consider this administrative appeal closed.

Lorraine A.G. Tarrow, Esq. SPR23/0886 Page 5 May 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman