Darius Gibson v. Department of Correction (SPR 20232239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2023 SPR23/2239 Kate Silvia Director of Communications Executive Office of Public Safety & Security Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Darius Gibson appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2023, Mr. Gibson requested “…copies of all emails between [an identified] Superintendent and [an identified] attorney regarding civil action docket #23-0167.” The Department provided a response on September 7, 2023. Unsatisfied with the Department’s response, Mr. Gibson petitioned this office and this appeal, SPR23/2239, 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). 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(d)(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…”); 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). 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

Kate Silvia SPR23/2239 Page 2 October 4, 2023 The Department’s September 7th response In its September 7, 2023 response, the Department claims the attorney-client privilege to withhold the requested records. 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, 450 n.9 (2007); 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 Department states the following: [T]here is a total of 6 records being withheld as Attorney/Client communications. These records were authored by attorney Daryl Glazer to Superintendent Matthew Divris and from Superintendent Divris to Attorney Glazer from the dates of July 18, 2023 through August 1, 2023 and specifically related to the client’s search for legal advice in the ongoing litigation of the civil matter Gibson v. Hayden 2385CV00167. These communications were made in confidence and the privilege as to these communications has not been waived. Although the Department provides some information regarding the nature of these records, I find that the Department must provide a detailed index to support its claims of the privilege. See Suffolk, at 460. Specifically, in accordance with G. L. c. 66, § 10A(a), the Department must provide the substance of the records it is withholding under the attorney-client privilege. Conclusion Accordingly, the Department is ordered to provide Mr. Gibson with a response to the

Kate Silvia SPR23/2239 Page 3 October 4, 2023 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson