Derek Langenberg v. Office of the Attorney General (SPR 20231143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2023 SPR23/1143 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 Derek Langenberg 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 24, 2022, Mr. Langenberg requested the following records: ... internal documents (messages sent between the AG’s office and the State Police) in case 03-10361-RWZ contain information that lies were told in order to win the case. The case is almost 20 years old and all the parties involved have moved on so the only harm in not releasing them is letting a crime go unpunished and that is not the Attorney General’s job. Previous appeal This request was the subject of previous appeals. See SPR23/0750 Determination of the Supervisor of Records (May 2, 2023). The AGO responded on May 16, 2023. Unsatisfied with the response, Mr. Langenberg petitioned this office and this appeal, SPR23/1143, 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. SPR23/1143 Page 2 June 14, 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 May 16th response In its May 16, 2023 response, the AGO stated, “[i]n our April 14 Response, we explained that we interpret your request to seek ‘messages sent between the AG’s office and the State Police’ in the context of litigation in which you were a party, Langenberg v. Foley et al., No. 1:03-cv-10361-RWZ (D. Mass. 2003).” The AGO provided two hundred fifty-four (254) pages of records and cited Exemption (d) and the attorney opinion work-product privilege of the Public Records Law and attorney client privilege to withhold requested records. Current appeal In his appeal, Mr. Langenberg states, “[t]he May 16th response from the Attorney General still does not deal with the fact that one of the first Attorney General employee that handled this ... is the one that suggested that I see these documents. We have someone inside their office who I believe clearly saw something that wasn’t right. This is almost a 20 year old case and I think I should be allowed to determine what was true or not.” 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under

Lorraine A.G. Tarrow, Esq. SPR23/1143 Page 3 June 14, 2023 Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. With respect to Exemption (d), the AGO asserts, “...communications between the AGO and its clients include draft pleadings or correspondence and are thus properly withheld in accordance with G.L. c. 4, § 7, cl. 26(d) and the attorney opinion work-product privilege, as articulated in DaRosa v. City of New Bedford, 471 Mass. 446 (2015), because the draft records were prepared in the defense of a civil litigation matter and possess an ongoing deliberative character in that they reflect thought processes and legal analyses that relate to the AGO’s defense in that case and other, similar cases. The disclosure of such opinion work product would impede our ability to effectively defend similar cases by inhibiting the candid thinking that results in reasoned and legally defensible courses of action now and in the future.” Upon review, the AGO has not fully explained whether the withheld responsive records include “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” Reasonably completed factual studies or reports on which the development of such policy positons has been or may be based are not permitted to be withheld under Exemption (d). See G. L. c. 4, § 7 (26)(d). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). As a result, the AGO has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). Further, the AGO has not explained how the disclosure of such opinion work product would impede the AGO’s ability to effectively defend similar cases. 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. Pursuant to the Public Records Law, in assessing whether a records custodian has

Lorraine A.G. Tarrow, Esq. SPR23/1143 Page 4 June 14, 2023 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 advised, “[a]ll communications, including attorney notes documenting the content of telephone conversations, between the AGO and its state agency clients are privileged attorney-client communications. 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, “[i]n this instance, the communications between the AGO and its clients are the very type of confidential communications that are protected by the attorney-client privilege, in each instance seeking and conveying legal advice concerning a civil litigation matter. Consequently, the attorney-client privilege is not waived in these circumstances.” Further, the AGO provided a “three (3)-page privilege log for the fifty (50) withheld communications.” The AGO stated, “[t]he log includes for each category of record: the number of records; the date(s) of the email communications; and, to the extent that is possible without abrogating the privilege or any other exemptions – the author(s)/recipient(s) and the substance of the record(s)/communication(s); and the exemption(s) and/or privileges that apply to those particular records.” Although the AGO has satisfied the requirements articulated in Suffolk, I find the AGO has not provided a sufficient privilege log that includes the names of the author and recipients in accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the AGO is to provide Mr. Langenberg 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: Derek Langenberg