Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20232873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2023 SPR23/2873 Christopher Guerin, Esq. Records Access Officer Division of Capital Asset Management & Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (Division/DCAMM) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2023, Mr. Herman requested “copies of any and all communications related to UMass Dartmouth recently vacating a downtown New Bedford building that once was a department store, in the files of DCAMM.” Previous Appeal This request was the subject of a previous appeal. See SPR23/2397 Determination of the Supervisor of Records (October 24, 2023). In my October 24th determination, I ordered the Division to provide Mr. Herman with a written response to his request. Subsequently, the Division responded on November 2, 2023, providing records in redacted form, and citing Exemptions (a), (d), (n) and (o) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(a), (d), (n), (o). Unsatisfied with the Division’s response, Mr. Herman further appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Division provided a supplemental response on December 8, 2023, also citing the attorney-client privilege for withholding certain records, and explaining that a record was deleted. 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

Christopher D. Guerin, Esq. SPR23/2873 Page 2 December 13, 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. Att’y 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. Current Appeal In his appeal petition, Mr. Herman first contends that under Exemption (a), and G. L. c. 12A, § 13, “the responsive records may be confidential in the files of the inspector general, but they are not confidential in the files of DCAMM.” Second, he contends that under Exemption (d), the Division’s “claim lacks the specificity required by the public records law.” Third, he argues that “deleted text messages are easily recovered. For example, the service provider can easily provide the deleted text message.” Finally, he contends that “DCAMM is withholding records involving attorneys without claiming attorney/client privilege and without complying with Suffolk.” The Division’s November 2nd and December 8th Responses In its November 2, 2023 and December 8, 2023 responses, the Division cites Exemptions (a), (d), (n) and (o) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(a), (d), (n), (o). Additionally, the Division cites the attorney-client privilege for withholding numerous records, and explains that one responsive text message was deleted. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Christopher D. Guerin, Esq. SPR23/2873 Page 3 December 13, 2023 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 12A, § 13 In its November 2nd and December 8th responses, the Division cites G. L. c. 12A, § 13, which provides in pertinent part as follows: All records of the office of inspector general shall be confidential unless, it is necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four. Violation of the provisions of section nine and section ten relative to the secrecy of proceedings by the inspector general or any member of the staff, or by any member of the inspector general council, shall be punished by imprisonment in a jail or house of correction for not more than six months or by a fine of not more than one thousand dollars. G. L. c. 12A, § 13. The Division also cites 945 C.M.R. 1.04(2)(b), which provides in pertinent part as follows: Complaints, information or referrals received, including the identity of the complainant or informant or referral source, are records of the Office of the Inspector General. Such records are not public records within the meaning of M.G.L. c. 4, § 7 clause 26 and shall be kept confidential unless disclosure is deemed necessary in the performance of the duties of the Office. 945 C.M.R. 1.04(2)(b). Under the statute and regulation cited above, the Division argues the following: In the instant matter, the materials withheld from production are email communications from the Office of the Inspector General (“OIG”) requesting information and DCAMM’s responses providing the requested information, pursuant to an OIG investigation authorized by Section 79 of Chapter 28 of the Acts of 2023. . . . All of the OIG’s communications to DCAMM and DCAMM’s responses to the OIG in the course of that investigation are confidential in the OIG’s files. The confidential nature of those records under G.L. c. 12A, § 13 would be rendered meaningless if the requestor is permitted to obtain copies of

Christopher D. Guerin, Esq. SPR23/2873 Page 4 December 13, 2023 those same communications through a public records request to DCAMM. . . . In the matter that is the subject of this appeal, the OIG requested information from DCAMM pursuant to an investigation under Section 79 of Chapter 28 of the Acts of 2023. DCAMM in turn, created a record by providing the information requested by the OIG. Based on 945 CMR 1.04(b)(2), the OIG received information, by email, from DCAMM causing that information to become a record of the OIG. Therefore, the records in the possession of DCAMM constitute “information received” by the OIG, and DCAMM may withhold such records from disclosure. Based on the statute and regulation cited above, to the extent the withheld records constitute “complaints, information or referrals received, including the identity of the complainant or informant or referral source,” such information may be properly withheld. However, it is unclear how “all of the OIG’s communications to DCAMM and DCAMM’s responses to the OIG” constitute the types of records described in 945 C.M.R. 1.04(2)(b). The Division must clarify this. 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 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). In its December 8th response, under Exemption (d), the Division argues the following: [I]n the instant matter, certain records were redacted or withheld from the Response, as policy discussions by and among DCAMM and the University of Massachusetts Dartmouth (“UMD”) regarding the treatment of the subject property are ongoing and therefore exempt from disclosure pursuant to Exemption (d). Premature disclosure of the requested communications could taint the

Christopher D. Guerin, Esq. SPR23/2873 Page 5 December 13, 2023 deliberative process if disclosed, as the subject of the Star Store building and UMD’s vacating the Star Store Building is highly sensitive and under intense scrutiny and the premature release of policy discussions could cause advocates to improperly influence the outcome of those policy decisions in a manner detrimental to the Commonwealth. The materials withheld include legal and policy discussions both inter-agency and intra-agency. Based on the Division’s response, it is unclear how disclosure of the redacted information would taint the ongoing deliberative process. The Division must clarify this. 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 (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 not inspect the record but 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 November 2nd and December 8th responses, the Division provides a privilege log listing approximately 22 items withheld under the attorney-client privilege. For each item, the Division provides the names of the authors and recipients, the dates, the substance of the records, and the grounds for claiming the attorney-client privilege. Additionally, in its December 8th response, the Division provides further details on the positions of the individuals named in the privilege log, and further explains that “all communications listed on the log were made in confidence for the purpose of securing legal advice or assistance and the attorney client privilege has not been waived.” Where the Division has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, and has explained the privilege has not been waived, I find the Division has met its burden to withhold the items listed in its privilege log.

Christopher D. Guerin, Esq. SPR23/2873 Page 6 December 13, 2023 Records Retention In its November 2nd response, the Division explains the following regarding a single text message: Document DCP000088 references a text message from [a named individual] to a project manager. A diligent search of DCAMM records revealed that the reference text message was inadvertently deleted and is unable to be recovered. Based on this, DCAMM is taking steps to ensure that future text messages and materials stored on mobile phones are retained both on devices and in cloud storage. In its December 2nd response, the Division further explains the following: [T]he message is a transitory message under the Massachusetts Statewide Records Retention Schedule (See Statewide Records Retention Schedule, A11-04). . . . In the instant matter, the text message received by the DCAMM employee was transitory in nature, as the contents of the message only sought information regarding contact information and the scheduling of a walk through that already occurred as of the date of the Request. Specifically, the “info regarding a final walkthrough at the Star Store as [a named individual] does not know who to contact at the College.” As such, DCAMM was not required to retain the text message and its deletion, whether inadvertent or intentional, was within the discretion of the DCAMM employee at the time of deletion. Moreover, no backup of such material was required. In the instant matter, as noted in the Response, the requested text message was inadvertently deleted prior to the date of the Request. Investigation of the matter revealed that on Apple iPhone’s, the phone used by the employee who received the text message, once a text message is deleted, it is held in a “Recently Deleted” folder for 30 days before the message is permanently deleted. In instances where individuals back iPhone messages up using their iCloud account, the iPhone may be restored to a date certain which restores all data as of that date certain. Here, the existence of the subject text message was discovered past the 30-day deletion window, and the employee who received the text message did not have messages backed up on their iCloud account. Please be aware, safeguards must be instituted by the Division to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 8, 13, 15. For further guidance in records management and retention, the Office may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government.

Christopher D. Guerin, Esq. SPR23/2873 Page 7 December 13, 2023 Conclusion Accordingly, the Division is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Colman Herman