Colman Herman v. Massachusetts Convention Center Authority (SPR 20241216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1216 Philip Crohan Senior Manager of Communications and External Relations Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Mr. Crohan: I have received the petition of Colman Herman appealing the response of the Massachusetts Convention Center Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2024, Mr. Herman requested, “…the calendar of [an identified individual] for the period of February 1, 2024 to the present.” The Authority provided a response on April 22, 2024. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR24/1216, 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 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. 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

Philip Crohan SPR24/1216 Page 2 May 6, 2024 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 Authority’s April 22nd response In its April 22, 2024 response, the Authority provided records responsive to the request and stated that these records were redacted pursuant to attorney-client privilege. Current Appeal In his appeal, Mr. Herman stated, “[a]lthough [the Authority] cites Suffolk as a basis for claiming attorney-client privilege, [they] fail to comply what the many requirements of the Suffolk court.” 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). Citing attorney-client privilege, the Authority states, “[t]he [Authority] is producing … a copy of [an identified individual]’s calendar from February 1, 2024 to April 6, 2024 (the date of your request). The [Authority] has redacted calendar entries that are privileged. See Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007).” Upon review, the Authority has not satisfied the requirement that the communications were received from an attorney during the course of the Authority’s search for legal advice from the attorney in his or her capacity as such. Further, the Authority has not satisfied the requirement that the communications were made in confidence. Additionally, the Authority has

Philip Crohan SPR24/1216 Page 3 May 6, 2024 not satisfied the requirement that the privilege as to these communications has not been waived. Finally, the Authority has not provided a detailed description of the redacted material, 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 in accordance with G. L. c. 66, § 10A(a). Therefore, I find the Authority has not met its burden to withhold the record under the attorney-client privilege. Conclusion Accordingly, the Authority is ordered to provide Mr. Herman 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. Mr. Herman may appeal the Authority’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman