Colman Herman v. Office of the State Auditor (SPR 20231127)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2023 SPR23/1127 Colon Cagle, Esq. Assistant General Counsel Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Cagle: I have received the petition of Colman Herman appealing the response of the Office of the State Auditor (Office/OSA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2023, Mr. Herman requested “any and all communications related to Auditor Diana DiZoglio’s efforts to monitor the legislature. This is for the period March 1, 2023 to the present.” Previous Appeal This request was the subject of a previous appeal. See SPR23/0711 Determination of the Supervisor of Records (April 25, 2023). In my April 25th determination, I ordered the Office to clarify its claims under Exemption (d) of the Public Records Law and to explain whether segregable portions of the records could be provided. Subsequently, the Office responded to Mr. Herman on May 19, 2023, providing numerous records and withholding and redacting others pursuant to Exemptions (c) and (d) of the Public Records Law, and the attorney-client privilege. Unsatisfied with the Office’s response, Mr. Herman further appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Office provided a supplemental response by email to Mr. Herman and this office on June 2, 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). 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

Colon Cagle, Esq. SPR23/1127 Page 2 June 13, 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. Att’y 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. Current Appeal In his appeal petition, Mr. Herman contends the following: 1) The auditor’s claim of exemption (d), the so-called deliberative process exemption, lacks the specificity required by the Massachusetts public records law. 2) Regarding the auditor’s claim of attorney-client privilege as a basis for withholding/redacting certain records in their entirety, the auditor does not fully comply with note 9 of Suffolk and she does not provide an attorney-client privilege log. 3) There is no actual audit going on, given that the Speaker of the House and the Senate President have said they will not allow it as a result of the separation of powers. The Office’s May 19th and June 2nd Responses In its May 19, 2023 response, the Office provides numerous responsive records, and cites Exemption (d) for redacting certain records, and the attorney-client privilege for withholding others. See G. L. c. 4, § 7(26)(d). 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,

Colon Cagle, Esq. SPR23/1127 Page 3 June 13, 2023 § 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). Under Exemption (d), the Office states that “two (2) records ... are being redacted pursuant to the deliberative policy exemption of the public records law.” The Office argues the following: The redacted documents are internal OSA communications regarding audit topics that contain evolving, not-yet-finalized positions for developing policy recommendations at the conclusion of our audit. It is important to note that audit topics are subject to change throughout the audit process. Further, the redacted portions of the responsive documents are not “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” ... A complete unredacted version of these records will be made available for full disclosure upon the completion of the audit and after OSA’s deliberative process regarding any policy recommendations has concluded. In its June 2nd response, the Office also explains the following: OSA acknowledges that the auditees have been uncooperative with the ongoing audit but maintains that a lack of cooperation does not prohibit an audit from occurring. The records disclosed pursuant to Colman Herman’s request demonstrate that OSA is indeed proceeding with its audit of the legislature and that the audit is ongoing. Based on the Office’s response, where the Office has confirmed that the redacted records were internal communications relating to policy positions being developed, and that the redacted portions are not factual matters, I find that the Office has met its burden in redacting these two records pursuant to Exemption (d). 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. 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

Colon Cagle, Esq. SPR23/1127 Page 4 June 13, 2023 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). In its May 19th response, the Office states “that OSA is withholding six (6) records under attorney-client privilege.” The Office further explains that “the records in question are confidential communications between the OSA and its legal counsel undertaken for the purpose of obtaining legal advice in connection with OSA’s audit of the legislature.” In its June 2nd response, the Office provides an index of the six emails being withheld pursuant to the attorney- client privilege, including a description of each record, the grounds upon which the privilege is being claimed, and the date. However, in its June 2nd response, the Office has merely described the authors of the withheld records as “OSA Staff” and the recipients as “OSA Legal Counsel.” Consequently, the Office has not met its burden in withholding these records under the attorney-client privilege. Specifically, the Office must provide the names of the author and recipients of each record for which the Office claims the attorney-client privilege. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman