Colman Herman v. Massachusetts Convention Center Authority (SPR 20241898)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2024 SPR24/1898 Jeannemarie Joyce, Esq. Assistant General Counsel Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Attorney Joyce: I have received the petition of Colman Herman appealing the response of the Massachusetts Convention Center Authority (Authority/MCCA) 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 Appeals This request was the subject of prior appeals. See SPR24/1319 Determination of the Supervisor of Records (May 15, 2024) and SPR24/1646 Determination of the Supervisor of Records (June 14, 2024). In my June 14th determination, I found that the Authority did not meet its burden to redact records under Exemption (c) of the Public Records Law. I also found that the Authority had not provided a sufficient privilege log per G. L. c. 66, § 10A(a). The Authority provided a response on July 1, 2024. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR24/1898, 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 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

Jeannemarie Joyce, Esq. SPR24/1898 Page 2 July 17, 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 July 1st Response In its July 1, 2024 response, the Authority cited Exemptions (c) and (d) of the Public Records Law and the attorney-client privilege to redact responsive records. In its response, the Authority stated, “[b]ecause that information is privileged regardless of whether it also falls under another exemption to the public records law, and given the inherent difficulty in providing additional information about privileged records (beyond the information already included in the Log) without revealing privileged and confidential information, the MCCA is not providing additional information at this time explaining why the redacted information is also not subject to disclosure pursuant to Exemptions C or D.” 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). In its May 30th response, under the attorney-client privilege, the Authority provided a privilege log and stated the following:

Jeannemarie Joyce, Esq. SPR24/1898 Page 3 July 17, 2024 [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 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. In its July 1st response, the Authority stated, “the records at issue are all invoices sent by the MCCA’s outside counsel to the MCCA, and the redacted information has been held in confidence and has not been shared with any third party that would waive the privilege… In any event, the information [Mr. Herman] seek[s] appears on the face of the invoices themselves and is thus already in your possession. Specifically, every invoice reflects the name of the law firm serving as the MCCA’s outside counsel, that the invoice was sent to the MCCA, and the names of the individual attorney(s) who performed work for the MCCA.” In this case, although portions of the invoices were redacted, the Authority has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the author

Jeannemarie Joyce, Esq. SPR24/1898 Page 4 July 17, 2024 and recipients, and information regarding the subject of each entry. Upon review, the Authority has satisfied the requirement that the communications were received from an attorney during the course of the Authority’s search for legal advice from the attorney in his or her capacity as such. Further, the Authority has satisfied the requirement that the communications were made in confidence, because the Authority explained in its May 30th response that “the redacted information, including the specific legal advice being sought and/or provided and the related work performed, has been held in confidence.” Finally, the Authority has satisfied the requirement that the privilege as to these communications has not been waived, because the Authority stated that “the privilege as to that information has not been waived[.]” Where the Authority has met its burden to redact the records under the attorney-client privilege, I decline to opine on the claims of Exemptions (c) and (d) of the Public Records Law. Conclusion Where the Authority has met its burden to redact records under the attorney-client privilege, I will now 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