Colman Herman v. Massachusetts Convention Center Authority (SPR 20241330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2024 SPR24/1330 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 March 14, 2024, Mr. Herman requested, “…copies of the agreements that the Massachusetts Convention Center Authority has executed with law firms whose invoices were recently provided to me.” Previous Appeal This request was the subject of a previous appeal. See SPR 24/0994 Determination of the Supervisor of Records (April 17, 2024). In my April 17th determination, I ordered the Authority to clarify its claims of Exemption (c) and attorney-client privilege to withhold the responsive records. The Authority provided a response on May 1, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/1330, 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

Philip Crohan SPR24/1330 Page 2 May 16, 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 Authority’s May 1st response In its May 1, 2024 response, the Authority provided further information on its claim of attorney-client privilege to withhold the responsive records. 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. 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 Authority stated:

Philip Crohan SPR24/1330 Page 3 May 16, 2024 The engagement letters in MCCA’s possession (1) are communications (letters) from attorneys from whom the MCCA was seeking legal advice; (2) the terms of which, including specific legal advice being sought, have been held in confidence; and (3) the privilege as to those communications has not been waived. [citation omitted] Specifically, the letters sought by Mr. Herman were sent by the MCCA’s outside counsel to the MCCA…and were not sent to any third party. All of the letters were sent in response to MCCA’s request for legal advice and contained information regarding the scope and terms of the attorney-client relationship between the MCCA and its outside counsel. Where the Authority indicates that the emails regarding this request are confidential communications between itself and counsel for the purpose of obtaining legal advice, were made in confidence, and that it did not disclose the communications to a third party or otherwise waive the attorney-client privilege, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Authority has met its burden to withhold responsive records pursuant to attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman