Colman Herman v. Massachusetts Convention Center Authority (SPR 20241646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2024 SPR24/1646 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 January 26, 2024, Mr. Herman requested, “…copies of any and all invoices submitted by outside law firms to the Massachusetts Convention Center Authority for the period January 1, 2023 to December 31, 2023.” Prior Appeal This request was the subject of a prior appeal. See SPR24/1319 Determination of the Supervisor of Records (May 15, 2024). In my May 15th determination, it was my understanding that the Authority intended to provide a further response to Mr. Herman. The Authority provided the response on May 30, 2024. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR24/1646, was opened as a result. Based on his petition, it appears Mr. Herman is appealing the Authority’s claims under Exemption (c) and the attorney-client privilege. 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 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 SPR24/1646 Page 2 June 14, 2024 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 Authority’s May 30th Responses In its May 30, 2024 response, the Authority cited Exemptions (c) and (d) of the Public Records Law and the attorney-client privilege to redact responsive records. Under Exemptions (c) and (d), the Authority stated the following: Much of the redacted information is also exempt from disclosure pursuant to G.L.C. 4, § 7(26)(c) (“Exemption c”) and/or G.L.C. 4, § 7(26)(d) (“Exemption d”). First, the MCCA has redacted, on any invoice where it appears, non-public information related to bank account numbers, tax identification numbers, and other financial information related to payment logistics between the MCCA and its outside counsel. Because the MCCA has redacted that information across all of the responsive invoices, those redactions are not included in the attached log. Moreover, some of the redacted privileged information has also been withheld because it contains information that is exempt from disclosure pursuant to Exemption c and/or Exemption d for other reasons. That is noted on the log where applicable. For clarity, please note that all of the redacted information is protected from disclosure under the attorney-client privilege. Where redacted information also falls under Exemption c and/or Exemption c, [sic] that is an additional basis upon which the redacted information is being withheld. Current Appeal In his appeal, Mr. Herman states, “I appeal because [the Authority] failed to list the individual names of the senders and the receivers of the communications. In addition [the Authority] continues to fail to provide the specificity required to claim exemption (c).” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an

Philip Crohan SPR24/1646 Page 3 June 14, 2024 unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. The Authority’s response did not contain the specificity required in a denial of access to public records. Based on the Authority’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the Authority did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Authority must clarify these matters.

Philip Crohan SPR24/1646 Page 4 June 14, 2024 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 Authority provided a privilege log and stated the following: [A]s set forth in [the Authority’s] April 16, 2024 letter to [Mr. Herman], the responsive invoices [Mr. Herman was] initially sent were redacted in order to protect privileged and confidential information and/or information that is otherwise exempt from disclosure. However, the invoices [he] initially received were incomplete and/or improperly redacted. As I said in my April 16 letter to [Mr. Herman], that was inadvertent and did not waive any rights the MCCA has to protect information from disclosure that is privileged and/or otherwise exempt from disclosure. Accordingly, the MCCA requested that [Mr. Herman] “destroy all copies of the invoices that were previously sent to you.” At the same time, the MCCA sent [him] a new set of properly-redacted invoices to replace the invoices [he] had previously received. To the extent the redacted invoices are relevant to [Mr. Herman’s] appeal, the invoices sent to [him] on April 16, 2024 are the invoices that should be utilized. [Mr. Herman’s] current appeal seeks these invoices in unredacted form. The information that has been redacted, however, is exempt from disclosure because it (1) involves attorney-client communications reflecting legal advice being solicited by and/or provided to the MCCA by outside counsel, and/or confidential legal work being performed in connection with the solicitation and provision of legal advice to the MCCA by outside counsel; (2) the redacted information, including the specific legal advice being sought and/or provided and the related work

Philip Crohan SPR24/1646 Page 5 June 14, 2024 performed, has been held in confidence; and (3) the privilege as to that information has not been waived… Specifically, the redacted information sought by Mr. Herman was written for and sent to the MCCA by outside counsel to the MCCA, and the redacted information was not sent to any third party that would have constituted a waiver of the MCCA’s attorney-client privilege. For additional information regarding the MCCA’s claim of privilege regarding the redacted invoices that are responsive to your request, please refer to the attached log. Note that the log lists the names of the law firms that served as outside counsel to the MCCA during the relevant time period. The log does not, however, list dates for each set of invoices because that information is available on the face of the invoices themselves. The Authority is advised that G. L. c. 66, § 10A(a) requires that a records custodian 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. Although the Authority provided the names of the law firms, it is uncertain who the individual authors and recipients are in the privilege log as provided. As such, the Authority must provide the names of the author and recipients of the communications in accordance with G. L. c. 66, § 10A(a). 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 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