Derek Langenberg v. Attorney General's Office (SPR 20231720)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 4, 2023 SPR23/1720 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 appeals This request was the subject of previous appeals. See SPR23/0750 Determination of the Supervisor of Records (May 2, 2023) and SPR23/1143 Determination of the Supervisor of Records (June 14, 2023). The AGO responded on June 14, 2023. Unsatisfied with the response, Mr. Langenberg petitioned this office and this appeal, SPR23/1720, 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. SPR23/1720 Page 2 August 4, 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 June 14th response In its June 14, 2023 response, the AGO provided a response with regard to the privilege log which supplemented the Records 48, 49 and 50 with the names of the author and recipient(s). In its May 16, 2023 previous response, the AGO provided two hundred fifty-four (254) pages of records and cited Exemption (d) of the Public Records Law and the attorney work- product doctrine, as well as the attorney-client privilege to withhold portions of the requested records. Current appeal In his appeal, Mr. Langenberg states, “[t]hey did not comply with the order from the Supervisor of Records to disclose reasons like they were instructed to do so.” 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 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 prior 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

Lorraine A.G. Tarrow, Esq. SPR23/1720 Page 3 August 4, 2023 (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.” In its June 14th supplemental response, the AGO stated, “...for Records 48-50 on the privilege log: Records 48: MSP Chief Administrative Officer John Flynn to First Assistant Attorney General Dean Richlin[;] Record 49: AAG William Porter to MSP Chief Legal Counsel Eleanor Sinnott[;] Record 50: MSP Chief Legal Counsel Eleanor Sinnott to AAG Susan Paulson[.]” Upon review, I find that the AGO has provided a sufficient privilege log and therefore has met its burden to withhold the requested records under the attorney-client privilege. Consequently, I decline to opine on the AGO’s Exemption (d) claim supporting non-disclosure of the requested records. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Derek Langenberg