Jordan Michelson v. Massachusetts Commission Against Discrimination (SPR 20241570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1570 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination 1 Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of Jordan Michelson appealing the response of the Massachusetts Commission Against Discrimination (Commission/MCAD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Respectively on April 9, 2024 and May 2, 2024, Mr. Michelson requested the following: [1] “emails and communications with MCAD employees” pertaining to specified keywords from the time periods of “[October 25, 2021- November 25, 2021], [Aug 15, 2022-October 15, 2022], [April 15, 2023-July 15, 2023], and [Feb 5, 2024-March 5, 2024].” [2.] a copy of the privilege log regarding the April 9, 2024 public records request. The Commission provided a response on May 17, 2024. Unsatisfied with the Commission’s response, Mr. Michelson petitioned this office and this appeal, SPR24/1570, 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). 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

Ruthy Barros SPR24/1570 Page 2 June 6, 2024 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. 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 Commission’s May 17th Response In its May 17, 2024 response, the Commission cited Exemption (a) of the Public Records Law to withhold a record regarding Mr. Michelson’s May 2nd request. Additionally, the Commission cited Exemption (d) of the Public Records Law and the attorney-client privilege to withhold records regarding Mr. Michelson’s April 9th request. Subsequent to the opening of this appeal, in an email sent to this office on May 31, 2024, the Commission stated the following: Mr. Michelson’s appeal appears to be an appeal of our response dated April 25, 2024. He initially requested all public records in the date range [September 15, 2021-February 23, 2024] that contain any of the following keywords: “Michelson” “Michaelson” “22BED01960” or “218CV02940”. Mr. Michelson’s investigative file was produced on February 26, 2024. Mr. Michelson then revised his request on April 9, 2024 to include emails and communications with MCAD employees. Records responsive to this request were produced to Mr. Michelson on April 25, 2024… As part of that April 25, 2024 response, we withheld 3 emails due to attorney-client privilege and attorney work product (a copy of a May 1, 2024 email informing Mr. Michelson of this is also attached). On May 2, 2024, Mr. Michelson requested any privilege log MCAD had regarding these emails, which we withheld due to attorney-client privilege and attorney work product… It appears Mr. Michelson is now requesting, through his appeal, “three emails that pertain to a complaint that I filed with MCAD.” We believe he is referring to the three emails referenced in the email [the Commission] sent him on May 1, 2024… Current appeal In his appeal, Mr. Michelson states, “[the Commission] has been very helpful and forthcoming with regard to all of the requested documents except one. That document consists of three emails… that pertain to a complaint that I filed with MCAD (22BED01960), which is now closed. Those emails are clearly subject to the Massachusetts Public Records Law (G. L. c. 66, §

Ruthy Barros SPR24/1570 Page 3 June 6, 2024 10), and I therefore pray that you order MCAD to produce the withheld document, any attachments, and all other emails in the email thread/chain.…[The] attorney-client privilege and work product doctrine only exist when there is an adversarial relationship between the requester and the agency… Documents are not protected from public records requests just because they are drafted by lawyers… here, there is not even the specter of litigation against MCAD. I just want to see the ‘investigatory materials’ that went into a public entity's investigation of my case.” Part 1 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). Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. 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). DaRosa, 471 Mass. 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. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16.

Ruthy Barros SPR24/1570 Page 4 June 6, 2024 Under Exemption (d), in its May 17th response, the Commission states, “pursuant to 804 CMR 1.21(3) (2020), one (1) document has been withheld pursuant to the attorney-client privilege… and/or the attorney work product doctrine…” Additionally, under Exemption (d) in an email sent to this office on May 31, 2024, the Commission stated, “[a]ttorney work product would also apply to some of these emails.” Upon review, the Commission has not met its burden to withhold the responsive records as attorney work product under Exemption (d). Specifically, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Commission has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. 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 (2017); 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). Under the attorney-client privilege, the Commission stated, “[t]he document [Mr. Michelson] seek[s] is being withheld pursuant to G.L. c. 4, § 7(26)(a), the statutory exemption of the Public Records Law by operation of 804 CMR 1.21(3)(2020)… which states that ‘[p]rivileged information, attorney work product, information exempt from disclosure pursuant to the public records law or other laws, information withheld or redacted pursuant to 804 CMR 1.21(4), and information placed under a pseudonym or protective order by the Commission pursuant to 804 CMR 1.04(7), 1.05(12) or 1.12(9) is not available to the public or to the parties.’ Therefore, pursuant to 804 CMR 1.21(3) (2020), one (1) document has been withheld pursuant to the attorney-client privilege...”

Ruthy Barros SPR24/1570 Page 5 June 6, 2024 Additionally, under the attorney-client privilege in an email sent to this office on May 31, 2024, the Commission stated, “[the Commission] firmly believe[s] that all three of these emails are subject to attorney-client privilege as they are between [the Commission] staff and staff attorneys seeking legal advice on Mr. Michelson’s case without any disclosure to third parties.” I find that the Commission has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Commission must clarify that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the Commission is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Part 2 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.” 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 May 17th response, the Commission cites 804 C.M.R. 1.21(3), which states:

Ruthy Barros SPR24/1570 Page 6 June 6, 2024 Privileged information, attorney work product, information exempt from disclosure pursuant to the public records law or other laws, information withheld or redacted pursuant to 804 CMR 1.21(4), and information placed under a pseudonym or protective order by the Commission pursuant to 804 CMR 1.04(7), 1.05(12) or 1.12(9) is not available to the public or to the parties. 804 C.M.R. 1.21(3). Under Exemption (a), the Commission stated, “[t]he document [Mr. Michelson] seek[s] is being withheld pursuant to G.L. c. 4, § 7(26)(a), the statutory exemption of the Public Records Law by operation of 804 CMR 1.21(3)(2020)… Therefore, pursuant to 804 CMR 1.21(3) (2020), one (1) document has been withheld pursuant to the attorney-client privilege… and/or the attorney work product doctrine…” Additionally, in an email sent to this office on May 31st, the Commission stated, “[o]ur regulations (804 CMR 1.21(3)(2020)) specifically allow us to withhold any documents that are protected by attorney-client privilege and attorney work product, which affords us a broader exemption than what would be available under the deliberative process exemption only.” Based on the Commission’s response, it is unclear how the privilege log regarding Mr. Michelson’s May 2nd request falls within the type of records contemplated in 804 C.M.R. 1.21(3). Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Conclusion Accordingly, the Commission is ordered to provide Mr. Michelson 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: Jordan L. Michelson