Darius Gibson v. Department of Correction (SPR 20241865)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2024 SPR24/1865 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Darius Gibson appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 24, 2024, Mr. Gibson requested: [1] All emails between [identified individuals] mentioning [an identified individual’s] 2024 public records request[;] [2] An index of all emails between [identified individuals] mentioning . . . 2024 public records request[.] Prior Appeals The requested records were the subject of prior appeals. See SPR24/0507 Determination of the Supervisor of Records (February 29, 2024), SPR24/0948 Determination of the Supervisor of Records (April 9, 2024) and SPR24/1449 Determination of the Supervisor of Records (May 28, 2024). In my April 9th determination, I found that upon review of the Department’s response, and privilege log, the Department must provide the substance of each of the records as required by G. L. c. 66, § 10A(a). In my May 28th determination, I learned that the Department intended on providing a further response. The Department responded on June 10, 2024, with an updated privilege log. Unsatisfied with the Department’s response, Mr. Gibson petitioned this office and this appeal, SPR24/1865, 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

Kate Silvia SPR24/1865 Page 2 July 10, 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. 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. 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 Department’s June 10th response In its June 10, 2024 response, the Department provided a privilege log for records withheld pursuant to the attorney-client privilege. Current Appeal In his appeal, Mr. Gibson stated: I’m trying to provide the board of bar counsel evidence that [an identified individual] violated the rules of professional conduct by emailing records access officer… and asking… to not provide my public records request which could have been used in litigation. See index attached #1 substance states correspondence regarding discovery for litigation. Also there is no attorney-client privilege [this individual] does not represent records access officer… in any court. Records access officer… is a D.O.C. employee and [this individual] works for D.O.C. legal division. 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.

Kate Silvia SPR24/1865 Page 3 July 10, 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). Citing attorney-client privilege in its June 10th response, the Department states the following: Please see a revised index of emails between [two identified individuals] mentioning [an individual]’s 2024 public records request. This index was created in response to the records request - it was not an existing document. Please note that the Department… is not waiving any privilege it may have by producing the index of the emails. In its March 7, 2024 response, the Department stated regarding request number 1, “...there are a total of 12 responsive documents being withheld as attorney-client communications.” The Department provided information to satisfy the Suffolk case inquiry and stated, “... the [Department] was seeking legal advice in regards to public record requests and appeals concerning the ongoing civil litigation Gibson v. Hayden ... These communications were made in confidence and the privilege as to these communications has not been waived.” Further, the Department provided a privilege log as to the author, recipient, date and subject matter of the records. In its June 10, 2024 response, the Department provided an updated privilege log that included the substance of each withheld communication. Therefore, I find the Department has met its burden to withhold the records under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gibson 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: Darius Gibson