Colman Herman v. Executive Office of Labor and Workforce Development (SPR 20231582)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1582 Alix P. Boren, Esq. Deputy General Counsel Executive Office of Labor and Workforce Development One Ashburton Place, Suite 2112 Boston, MA 02108 Dear Attorney Boren: I have received the petition of Colman Herman appealing the response of the Executive Office of Labor and Workforce Development (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2023, Mr. Herman requested “…copies of any and all communications related to the state mistakenly using about $2.5 billion in federal money to fund jobless benefits during the COVID-19 pandemic.” Claiming to not yet have received responsive records, Mr. Herman petitioned this office and this appeal, SPR23/1582, was opened as a result. Subsequent to the opening of this appeal, the Office provided a response on July 11, 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. 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

Alix P. Boren, Esq. SPR23/1582 Page 2 July 24, 2023 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. The Office’s July 11th response In its July 11, 2023 response, the Office stated that “[it is] unable to provide records responsive to your request based on both attorney-client privilege and exemption (d) of the public records law.” Current appeal In his appeal, Mr. Herman stated the following: … 3) While the appeal was pending, Alix Boren . . . responded as follows. We are unable to provide records responsive to your request based on both attorney-client privilege and exemption (d) of the public records law. 4) There is much that is wrong with this response, as set forth below. a) The claim of exemption (d) lacks the specificity required by the public records law. b) The claim of attorney-client privilege fails to comply with Suffolk, including, but not limited to, not providing a privilege log. c) There is no statement of what records actually exist. 5) Accordingly, please order [the Office] to produce the responsive records. 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

Alix P. Boren, Esq. SPR23/1582 Page 3 July 24, 2023 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). Burden of specificity; segregable portions The Office has not met its burden of specificity in claiming Exemption (d) to withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the Office’s response, it is unclear the types of records the Office possesses that it withheld under Exemption (d). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Office must identify the record(s) it has in its possession that it withheld under Exemption (d) as well as provide specific reasons for such withholding. It is additionally uncertain how the records can be withheld in their entirety. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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. 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). Based upon the Office’s response, I find the Office has not established the existence

Alix P. Boren, Esq. SPR23/1582 Page 4 July 24, 2023 of an attorney-client relationship in compliance with Suffolk and the Public Records Law. The Office has not explained whether 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. Further, the Office has not stated whether the communications were made in confidence or whether the privilege as to these communications has been waived. Additionally, the Office has not provided a privilege log with 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 pursuant to G. L. c. 66, § 10A(a). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Mr. Herman 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: Colman Herman