Jordan Michelson v. Massachusetts Commission Against Discrimination (SPR 20241812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2024 SPR24/1812 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. Prior Appeal This request was the subject of a prior appeal. See SPR24/1570 Determination of the Supervisor of Records (June 6, 2024). In my June 6th determination, I found that the Commission had not met its burden to withhold responsive records under Exemptions (a), and (d) of the Public Records Law, as well as the attorney-client privilege. The Commission provided a response on June 20, 2024. Unsatisfied with the Commission’s response, Mr. Michelson petitioned this office and this appeal, SPR24/1812, 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 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 SPR24/1812 Page 2 July 3, 2024 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. 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 June 20th Response In its June 20, 2024 response, the Commission continues to cite Exemptions (a) and (d) of the Public Records Law to withhold a record regarding Mr. Michelson’s May 2nd request. Additionally, the Commission cited the attorney-client privilege to withhold records regarding Mr. Michelson’s April 9th request. Current appeal In his appeal, Mr. Michelson states, “attorney-client privilege obviously does not attach to a conversation between MCAD coworkers who are discussing third party’s liability. Furthermore… MCAD must respond to both the May 2 request (for documents) and the [April 9] request (the privilege log). The Commission has only provided the latter.” Part 1 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.

Ruthy Barros SPR24/1812 Page 3 July 3, 2024 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 the following: There are three documents that were withheld in response to the April 9, 2024, request. The first is an email from Brianna Hill-Fresh, an MCAD employee, to Lila Roberts, an MCAD attorney, sent on October 4, 2022, seeking their advice on next steps of the investigation into [Mr. Michelson’s] case… No one else was cc’d on the email, and no one outside the Commission has seen this email. Attorney-client privilege applies as it is a communication to an attorney seeking a legal opinion. The second is an email from Brianna Hill-Fresh to Kristen Dannay, another MCAD attorney, sent on August 22, 2022, seeking her opinion on your draft complaint. No one else was cc’d on the emails, and no one outside the Commission has seen these emails. Attorney-client privilege applies as it is a communication to an attorney seeking a legal opinion. The third email is the reply from Kristen Dannay to Brianna Hill-Fresh, also sent on August 22, 2022, providing her opinion on your draft complaint. No one else was cc’d on the emails, and no one outside the Commission has seen these emails. Attorney-client privilege applies as it is a communication from an attorney giving a legal opinion. Confidentiality of Communications: All the communications in question were made in confidence between the Commission’s staff and its legal counsel. These emails were exchanged explicitly for the purpose of seeking legal advice on matters related to [Mr. Michelson’s] case… At no point were these communications shared with any third parties outside the attorney-client relationship. They were intended to remain confidential to facilitate candid discussions necessary for effective legal counsel. Non-Waiver of Privilege: The privilege associated with these communications has not been waived. The emails were strictly confined to the internal legal team and relevant Commission staff. No part of the communications was disclosed to third parties or any individuals who were not part of the privileged relationship. Therefore, the integrity of the attorney-client privilege has been maintained.

Ruthy Barros SPR24/1812 Page 4 July 3, 2024 Again, the Commission has expressly exempted privileged information from disclosure to the public and to those who are parties to MCAD cases. See 804 CMR 1.21 (3) (2020) (“Privileged information… is not available to the public or to the parties”). Privileged information includes attorney-client privilege, a well- recognized privilege. The three emails protected by attorney-client privilege are not available to you, either as member of the public or as a party to an MCAD case, as they are exempted from disclosure under 804 CMR 1.21 (3) and exemption (a). Upon review, the Commission has satisfied the requirement 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, because the Commission confirmed “[t]hese emails were exchanged explicitly for the purpose of seeking legal advice on matters related to [Mr. Michelson’s] case…” Further, the Commission has satisfied the requirement that the communications were made in confidence, because the Commission explained that “[a]ll the communications in question were made in confidence between the Commission’s staff and its legal counsel.” Finally, the Commission has satisfied the requirement that the privilege as to these communications has not been waived, because the Commission stated that “[a]t no point were these communications shared with any third parties outside the attorney-client relationship. They were intended to remain confidential to facilitate candid discussions necessary for effective legal counsel… The privilege associated with these communications has not been waived. The emails were strictly confined to the internal legal team and relevant Commission staff. No part of the communications was disclosed to third parties or any individuals who were not part of the privileged relationship.” Also, the Commission has provided a detailed description of the records, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the attorney-client privilege is being claimed in its June 20th response. Therefore, I find the Commission has met its burden to withhold records responsive to the April 9th request under the attorney-client privilege. 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.

Ruthy Barros SPR24/1812 Page 5 July 3, 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 June 20th response, the Commission cites 804 C.M.R. 1.21(3), which states: 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). In its June 20th response, the Commission stated, “[i]n the course of the April 9, 2024 request (#24-99), [Mr. Michelson] made multiple comments about the Commission’s potential liability with regard to the handling of [Mr. Michelson’s] MCAD case. The Commission took these comments as a threat of litigation and created a privilege log concerning three withheld emails before responding to the April 9, 2024 request. Attorney work product is opinion work product that was prepared in anticipation of litigation or for trial by or for a party or its representative… The privilege log contains the Commission’s Deputy General Counsel’s opinions and legal analysis of the withheld documents. The Commission created this privilege log in preparation of litigation because of comments threatening litigation. Thus, the privilege log falls into the ‘attorney work product’ category that is exempted from disclosure by 804 CMR 1.21 (3) and exemption (a).” Based upon the Commission’s response, and as the records of the Commission are “not available to the public or to the parties” as defined in 804 C.M.R. 1.21(3), as it operates through Exemption (a) of the Public Records Law, I find the Commission has met its burden in

Ruthy Barros SPR24/1812 Page 6 July 3, 2024 responding to this records request. See 804 C.M.R. 1.21(3) (providing that “attorney work product . . . is not available to the public or to the parties”). 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. Where the Commission has met its burden to withhold the requested record pursuant to Exemption (a) of the Public Records Law, I decline to opine on the applicability of Exemption (d), supporting non-disclosure of the requested records. Conclusion Where the Commission has met its burden to withhold records under the attorney-client privilege and Exemption (a) of the Public Records Law, I will now consider this administrative

Ruthy Barros SPR24/1812 Page 7 July 3, 2024 appeal closed. If Mr. Michelson 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: Jordan L. Michelson