Matthew J. Iverson, Esq. v. Attorney General's Office (SPR 20232296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2023 SPR23/2296 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 Matthew J. Iverson, Esq., of Nelson Mullins, 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 August 22, 2023, Attorney Iverson requested the following records: All documents and communications between the AGO and any party (including but not limited to any employee of Lichten & Liss-Riordan, P.C.) discussing or concerning Dhananjay Patel, et al. v. 7-Eleven, Inc., et al., Case No. 23-1043 (1st Cir. 2023); Dhananjay Patel, et al. v. 7-Eleven, Inc., et al., Case No. 17-11414- NMG (D. Mass. 2022); and/or the subject matter of the aforementioned lawsuits. The AGO responded on September 8, 2023. Unsatisfied with the response, Attorney Iverson petitioned this office and this appeal, SPR23/2296, 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. SPR23/2296 Page 2 October 11, 2023 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 September 8th response In its September 8, 2023 response, the AGO claimed Exemption (d) of the Public Records Law and attorney-client privilege to withhold the records in their entirety. Further, the AGO referenced that the matter noted in the request is pending in the United States Court of Appeals for the First Circuit. See Dhananjay Patel, et. al. v. 7-Eleven, Inc., et. al., SJC-13485 (2023) as well as Dhananjay Patel, et. al. v. 7-Eleven, Inc., et. al., Case No. 23-1043 (1st Cir. 2023) and Dhananjay Patel, et al. v. 7-Eleven, Inc., et. al., Case No. 17-11414-NMG (D. Mass 2022). Current appeal In his appeal, Attorney Iverson opines, “[a]lthough the communications the request seeks discuss the Patel Litigation, they are not the ‘subject of’ that litigation. The Patel Litigation concerns claims by 7-Eleven franchisees that they have been misclassified as independent contractors ... The AGO’s communications play no role in those claims.” Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. The AGO confirmed that the matter is currently pending before the United States Court of Appeals for the First Circuit as referenced above and that the requested records are directly related to the proceedings. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (d) and attorney- client privilege to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Lorraine A.G. Tarrow, Esq. SPR23/2296 Page 3 October 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Matthew J. Iverson, Esq.