Ian Hunt-Isaak v. Executive Office of Energy and Environmental Affairs (SPR 20242175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2024 SPR24/2175 Read D. Porter, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Porter: I have received the petition of Ian Hunt-Isaack appealing the response of the Executive Office of Energy and Environmental Affairs (Office/EEA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2023, Mr. Hunt-Isaak requested the following: [1.] Emails sent or received between July 24, 2023 to August 1, 2023 (inclusive) containing any of the following [identified] search terms (with any capitalization and without quotes) ... [2.] Emails sent to or received from [an identified] State Rep or her aides between July 24, 2023 to August 1, 2023 (inclusive)[;] [3.] Logs of calls made or received by [an identified official] on July 24, 25th, and 26th. Including: The date and time the call occurred, call length and the phone line or aide that were then transferred or otherwise passed to [an identified official][.] Prior Appeal This request was the subject of a prior appeal. See SPR23/2476 Determination of the Supervisor of Records (November 1, 2023). In my November 1st determination, I ordered the Office to provide Mr. Hunt-Isaak with a response to his request. The Office responded on July 31, 2024. Unsatisfied with the response, Mr. Hunt-Isaak petitioned this office and this appeal, SPR24/2175, was opened as a result. While this appeal was pending, the Office provided a supplemental response on August 12, 2024. 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

Read D. Porter, Esq. SPR24/2175 Page 2 August 15, 2024 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 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 Office’s July 31st and August 12th Responses In its July 31st response, the Office cites Exemptions (d) and (n) of the Public Records Law and the attorney-client privilege to redact and withhold information. Current appeal In his appeal, Mr. Hunt-Isaak states, “I believe that there are multiple instances of excessive application of attorney-client exemption… The attorneys in question are cc’d rather than in the TO field on many of these emails. There are people external to EEA, although still in state government, on these emails… There is no mention in the email subjects of ‘confidential’ or ‘legal advice’, or similar… The cover letter mentions that some records are withheld due to falling under exemption d. There are two issues here. First, there does not seem to be any section of the records that is explicitly notated as falling under this exemption. Second this exemption does not apply to deliberative processes that have concluded.” Upon review of the appeal, it appears Mr. Hunt-Isaak is not objecting to the Office’s claim under Exemption (n). 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

Read D. Porter, Esq. SPR24/2175 Page 3 August 15, 2024 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). Under Exemption (d), the Office states, “[the Office] has withheld email communications pertaining to the ongoing deliberation regarding internal policies and procedures for communications. The deliberative process exemption at M.G.L. c. 4, § 7(26)(d) is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process that are contained within inter-agency or intra-agency memoranda or letters. Any records in relation to that process are exempt from disclosure and have been redacted or withheld.” In its August 12, 2024 response, the Office stated, “[the Office] did not apply the deliberative process exemption on the basis that a record contained ongoing deliberations with respect to the closure of Memorial Drive and opening of Riverbend Park on Saturdays. Rather, the exemption was applied to one email thread containing six emails regarding ongoing deliberations about internal policies and procedures for communications. Because EEA withheld that email thread in its entirety, the records that were produced to Hunt-Isaak did not contain any notation indicating that the deliberative process exemption had been applied.” The Office is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the Office must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the Office has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding

Read D. Porter, Esq. SPR24/2175 Page 4 August 15, 2024 that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It is additionally uncertain how disclosure of the records would taint the ongoing deliberative process. The Office must clarify these matters. 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 Office stated the following: …certain records are being redacted or withheld pursuant to the attorney-client privilege. These records include communications involving [a named individual] and [a named individual], the General Counsel and Deputy General Counsel at EEA, respectively, concerning legal advice. … Certain records responsive to [Mr. Isaac-Hunt’s] request involve communications with [named individuals], attorneys who are members of the Massachusetts bar and legal advisors to EEA. Their role includes the provision of professional legal advice and representation to EEA. The communications were made in confidence and the privilege has not been waived. Therefore, the communications are protected by the attorney-client privilege. In its August 12th response, the Office stated the following: Here, the emails redacted or withheld due to the application of attorney-client

Read D. Porter, Esq. SPR24/2175 Page 5 August 15, 2024 privilege include those in which [named attorneys], the General Counsel and Deputy General Counsel at EEA, respectively, were either direct recipients (on the “To” line) or copied parties. That certain employees at EEA or the state government had sought legal advice from [named attorneys] in these emails is not merely implied by their inclusion but in several instances explicitly stated. They are explicitly called upon for advice in the relevant threads either by name or reference to “EEA legal.” [Named attorneys] participate in these threads by providing legal advice, namely regarding the boundaries of an agency’s legal authority and certain public records requests received by a constituent agency. In some cases, correspondence preceding or after the legal advice provided by EEA attorneys was redacted or withheld because those emails contained information relayed to [named attorneys] to enable them to provide legal advice or contained correspondence related to the legal advice provided. The attorney-client privilege, therefore, was correctly applied to emails in which EEA attorneys were copied parties. … [T]he Governor and her staff are EEA’s clients; therefore, attorney-client privilege should apply to communications between them. EEA is a cabinet-level agency that operates under and pursuant to the goals of the Governor of Massachusetts. The EEA Secretary reports to the Governor. EEA staff, including its attorneys, advise the Governor and her staff on matters before and relevant to EEA. Certain members of the Governor’s staff were included in some of the email chains with EEA attorneys because the Governor and her staff, along with the EEA staff that were included in those emails, were responsible for engaging with or responding to the issues and legal questions stemming from the subject matter of those emails. Alternatively, even if the relationship between EEA attorneys and the Governor’s staff were considered not to be one between attorney and client, there is sufficient “common interest” between the Governor and EEA that communication between the Governor and her staff and EEA would be privileged. The common interest doctrine broadens the reach of attorney-client privilege to relationships with third parties when communication with those third parties occurs “for the purpose of furthering a common legal interest.” … Here, the interests of EEA and the Governor were aligned with respect to the subject matter of the emails, and they were working together to resolve the issues discussed in those emails. … Although privileged email communications at EEA sometimes include a “confidential” or “privileged” notation in the subject line, this is not always the case, particularly when such communications stem from a separate discussion. The use of such a notation is not dispositive with respect to the application of privilege… Please note that the redacted emails generally involve at least one recipient that is

Read D. Porter, Esq. SPR24/2175 Page 6 August 15, 2024 an attorney. In several instances, the To/From fields were redacted along with the emails. In ENV000028, for example, the final, unredacted email that is between [named individuals] is one of many emails in a larger email thread. Although neither [named individuals] are attorneys, each of the prior emails in the thread involved at least one attorney recipient. Upon review, the Office 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 Office confirmed in its July 31st response that the “records include communications involving… the General Counsel and Deputy General Counsel at EEA, respectively, concerning legal advice.” Additionally, the Office stated in its August 12th response that “certain employees at EEA or the state government had sought legal advice from [named attorneys] in these emails… [named attorneys] participate in these threads by providing legal advice, namely regarding the boundaries of an agency’s legal authority and certain public records requests received by a constituent agency.” Further, the Office has satisfied the requirement that the communications were made in confidence, because the Office explained in its July 31st response that “[t]he communications were made in confidence…” Finally, the Office has satisfied the requirement that the privilege as to these communications has not been waived, because the Office stated in its July 31st response that “the privilege has not been waived.” However, the Office 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. Consequently, the Office must provide a privilege log in compliance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the Office is ordered to provide Mr. Hunt-Isaak 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.

Read D. Porter, Esq. SPR24/2175 Page 7 August 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Ian Hunt-Isaak Yuna L. Choi, Esq.