Laura H. Ortiz v. Attorney General's Office (SPR 20231857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2023 SPR23/1857 Lorraine A.G. Tarrow, Esq. Assistant Attorney General 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 Laura Ortiz 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 November 18, 2022, Ms. Ortiz requested the following records: A. What records are there that are responsive to AGO to AGO correspondence that discussed this OML22-199 case in any way? We would like a copy of any that are responsive to [named persons] at the AGO either as the sender or recipient … but assume the Timeline: 8/29/22-11/2/22 B. [P]ublic record we seek that were not located or retrieved etc, and to further understand how AGO conducts its records searches, as well as if we will need to modify it after we receive this AGO RAO superior knowledge within the AGO’s location and retrieval capabilities, therefore we need to have AGO assist us with answering under M.G.L. c. 66, § 10(b)(vii) proactively … Previous appeals This request was the subject of previous appeals. See SPR22/2868 Determination of the Supervisor of Records (December 29, 2022) and SPR23/0734 Determination of the Supervisor of Records (April 28, 2022). In my April 28th determination, the AGO was to provide a further response to Ms. Ortiz. The AGO responded on May 15, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/1857, was opened as a result. 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. SPR23/1857 Page 2 August 24, 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. The AGO’s May 15th response In its May 15, 2023 response, the AGO stated, “[t]he only record we withheld was a draft determination. Additionally, we redacted the four (4) responsive emails, as explained further below. Please note that there are no other responsive communications, including any with BESE, nor is BESE the AGO’s client here.” The AGO cited Exemption (d) of the Public Records Law to withhold the draft determination as well as redactions made to the four responsive emails. Current appeal In her appeal, Ms. Ortiz asserts, “[w]e object to AGO refusal to provide a privilege log and in a privilege log electronic spreadsheet format ... The RAO has failed to provide any grounds upon which the attorney-client privilege is being claimed for all those ‘communications’ or the draft of the Open Meeting Law violation determination. The RAO has improperly redacted the actual log itself ...” Ms. Ortiz further asserted, “[t]he records owner (AGO) has failed to produce the ‘draft version of the requested Open Meeting Law (OML) determination letter (OML 2022-199)’ which is the only record given the informal process as stated by the AGO in OML2022-199.” 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).

Lorraine A.G. Tarrow, Esq. SPR23/1857 Page 3 August 24, 2023 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 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. In its response, the AGO asserted the following: Both the withheld draft determination and the redactions were made in accordance with G.L. c. 4, § 7, cl. 26(d) insofar as they constitute or contain intra- agency, i.e., internal, communications between Assistant Attorneys General that reveal an ongoing deliberative process being developed by the AGO, namely the legal and policy positions of the AGO with respect to the Open Meeting Law, the disclosure of which may impede current or future investigations, undermine the defense of any legal challenges, or prematurely disclose legal strategies for current and/or future Open Meeting Law investigations. The disclosure of the draft determination or redacted information would taint this deliberative process by inhibiting the candid thinking that results in reasoned and legally defensible determinations, now and in the future. Further, such deliberative communications concerning the development of strategies and policies related to ‘the defense of any legal challenges’ referenced above are necessarily prepared in anticipation of litigation and thus protected attorney opinion work product, as articulated in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In its earlier response dated January 13, 2023, the AGO advised that it “did not withhold any e-mails responsive to your request. We reiterate that the only withheld record was the draft OML decision described above. As the record is deliberative in nature by its very definition and as further explained with regard to the redacted e-mails below, withholding such a draft in its entirety is appropriate as proper redaction is not possible. Further, we clarify that the AGO did not redact any reasonably completed factual information from the e-mails provided; any such factual information was left unredacted. We redacted only our internal deliberations concerning the Open Meeting Law enforcement matter in accordance with G.L. c. 4, § 7, cl. 26(d).”

Lorraine A.G. Tarrow, Esq. SPR23/1857 Page 4 August 24, 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. Rapa & 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 response, the AGO stated, “…the communications were sent between AAsG, in each instance seeking and conveying legal advice concerning an Open Meeting Law investigation. Consequently, the attorney-client privilege is not waived in these circumstances.” The AGO also asserted, “... 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) ...” Upon review, I find that the AGO has met its burden to withhold the redacted emails pursuant to the attorney-client privilege. Further I find the AGO has provided a sufficient privilege log in accordance with G. L. c. 66, § 10A(a). However, the AGO has not met its burden to withhold the draft OML decision under Exemption (d). The AGO has not demonstrated that there is an ongoing deliberative process, nor fully explained how disclosure of the withheld responsive record would taint the ongoing deliberative process, if any. Based on the AGO’s response, it is uncertain if the record contains any factual information that can be segregated from the record. As such, I find the AGO must clarify whether the withheld record contains any factual information that can be segregated from the responsive record, as Exemption (d) does not apply to such information. 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).

Lorraine A.G. Tarrow, Esq. SPR23/1857 Page 5 August 24, 2023 Conclusion Accordingly, the AGO is to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Laura Ortiz