Carolyn Wagner v. Department of Unemployment Assistance (SPR 20240881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2024 SPR24/0881 John P. Cronin, Esq. Assistant Chief Counsel Department of Unemployment Assistance 19 Staniford Street Boston, MA 02114 Dear Attorney Cronin: I have received the petition of Carolyn Wagner appealing the response of the Department of Unemployment Assistance (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October, 22, 2023, Ms. Wagner requested, “…any and all MA DUA and MA Board of Review records, including hard copy files, emails, emailed attachments, documents, spreadsheets, and other electronic files saved to computers and external storage, etc., that provide a reason or explanation for the discrepancies.” Previous Appeal This request was the subject of a previous appeal. See SPR 23/2847 Determination of the Supervisor of Records (December 11, 2023). In my December 11, 2023 determination, it was my understanding that the Department intended to provide a further response. The Department provided a response on December 26, 2023. Unsatisfied with the response, Ms. Wagner petitioned this office and this appeal, SPR24/0881, 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also 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

John P. Cronin, Esq. SPR24/0881 Page 2 April 8, 2024 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s December 26th Response In its December 26, 2023 response, the Department stated, “…the emails dated May 17, 2022, October 2, 2023, and October 11, 2023, to Board of Review staff attorneys transmit an attachment entitled ‘Analyzing BOR vaccination appeals- 25(e) 5-23-22.” A copy of this document was already provided to Ms. Wagner on December 2, 2023.” The Department also withheld certain records and stated, “…the documents listed in the privilege log in my prior response, dated November 6, 2023, are either statutorily exempt from disclosure by statute as allowed under G.L. c. 4, § 7(26)(a), exempt from disclosure as opinion work product pursuant to G.L. c. 4, § 7(26)(d), or protected by attorney client privilege.” Current Appeal In her March 24, 2024 appeal petition, Ms. Wagner stated: [The Department] described the information in both the 23-page document entitled “sample decision language 6-30-22” and the “G.L. c. 151A, 25(e)(1) and (2) Elements 10-26-20” record as being used in training and for reference, and as the public has a right to know how Board of Review staff, including attorneys were trained on key matters such as the statutory provisions related to E.O. 595, I request that your office require the Board to provide me the above-mentioned records, especially the final versions, but also any and all drafts that were attached to emails, as E.O. 595 was rescinded in May of 2023 and a reasonable person wouldn’t expect there to still be ongoing discussion about its statutory provisions. I also appeal [the Department’s] attempt to withhold any and all documents that she claims in her 12/26/23 letter to be withholding due to attorney-client privilege[.] 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

John P. Cronin, Esq. SPR24/0881 Page 3 April 8, 2024 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.” 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. In its December 26th response, the Department cited G. L. c. 151, § 46(a), which provides in pertinent part: Except as provided in this section, information secured pursuant to this chapter is confidential and for the exclusive use and information of the department in the discharge of its duties. Such information is not a public record nor admissible in a any action or proceeding, except as provided in this section. This information is absolutely privileged and shall not be made the subject matter or basis in any action of slander, libel or emotional distress. G. L. c. 151, § 46(a). In its December 26th response, the Department stated: Other documents are statutorily exempt from disclosure pursuant to G. L. c. 4, § 7(26)(a)…The August 1, 2022 email to the Board members and staff attorneys attaches and discusses a specific Board of Review decision. The June 1, 2023, email to the same recipients discusses a particular appeal which went to the District Court. Its attachment contains: a DUA Legal Department memorandum to the Board of Review, the District Court’s Docket sheet and decision, the Board of Review decision, and the DUA Hearings Department decision. Attached to the June 5, 2023, email to a staff attorney is a copy of the Board Chief Counsel’s detailed analysis and recommendations to the Board members in a specific appeal. Each of these attachments contains confidential information secured by the DUA during the initial determination or subsequent hearing for that particular unemployment claim.

John P. Cronin, Esq. SPR24/0881 Page 4 April 8, 2024 The Department noted in its responses that completed Board of Review decisions are redacted and publicly available on Mass.gov. Where the records withheld are information secured pursuant to G. L. c. 151, § 46(a), I find that the Department has met its burden to withhold records under Exemption (a), with the exception of records which are posted publicly on Mass.gov. 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). 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 December 26th response the Department stated: The email dated June 30, 2022, attaches a document entitled “sample decision language 6-30-22,” which was prepared by the Chief Counsel. This 23-page document is a compilation of legal citations and draft language for use by the Board members and staff attorneys to review, analyze, discuss, decide, and write decisions in pending appeals…It reflects the mental impressions, conclusions, opinion, and legal theories of the Chief Counsel based upon her legal research, prior Board decisions, and discussions with the Board members...Because there is never a time when appeals are not pending before the Board of Review, we

John P. Cronin, Esq. SPR24/0881 Page 5 April 8, 2024 maintain that it is an opinion work product pertaining to litigation in which the Board must render decisions. Where the documents listed consist of opinions, impressions, legal theories, and conclusions by the Chief Counsel and attorneys prepared in anticipation and to assist in the appeals process of the Board of Review, I find that the Department has met its burden in withholding the requested records under Exemption (d). Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. In its November 6th response, the Department provided a privilege log. In its December 26th response, the Department clarified, “[a]ll of the listed emails are from the Chief Counsel, which were sent internally to Board members or Board staff attorneys. As in-house counsel, the Chief Counsel functions in the dual role of advising the appointed Board members and their staff of attorneys on legal matters, and she acts [as] a spokesperson for the Board members in communicating Board policy.” Upon review, the privilege log provided and further correspondence does not identify the recipients of the emails. Where G. L. c. 66, § 10A(a) provides that a records custodian provide the names of the author and recipients of the record, I find the Department must provide a privilege log in compliance with the statute. Conclusion Accordingly, I find that the Department has met its burden to withhold certain requested records pursuant to Exemptions (a) and (d) of the Public Records Law. With respect to the claim of attorney-client privilege, the Department must provide additional details regarding the names

John P. Cronin, Esq. SPR24/0881 Page 6 April 8, 2024 of the recipients of the emails. Consequently, the Department is ordered to provide Ms. Wagner with a response to the 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: Carolyn Wagner