Michael Leung-Tat v. Massachusetts Convention Center Authority (SPR 20242337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 30, 2024 SPR24/2337 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 Michael Leung-Tat, Esq., of the Office of State Auditor, appealing the response of the Massachusetts Convention Center Authority (Center) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 27, 2024, Attorney Leung-Tat requested “…a copy of the report produced by Nystrom, Beckham and Paris for the MCCA that purportedly examined the bid process for the development of parcels on D Street and E Street. The report was referenced in two recent Boston Globe articles.” The Center responded on July 12, 2024. Unsatisfied with the response, Attorney Leung- Tat petitioned this office and this appeal, SPR24/2337, 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 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. 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. SPR24/2337 Page 2 August 30, 2024 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 Center’s July 12th Response In its July 12, 2024 response, the Center cited attorney-client privilege to withhold the requested report. Current appeal In his appeal, Attorney Leung-Tat stated, “[t]he Report is not protected from disclosure under the attorney-client privilege, as set forth in detail above. To the extent that the Report does contain legal advice/guidance (a matter to which the OSA does not stipulate), wholesale withholding of the Report is inappropriate. Only those sections of the Report that constitute communications providing legal advice/guidance (if any) would be subject to appropriate redaction/withholding from disclosure under attorney-client privilege.” Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & 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. The indices shall include 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, § l0A(a). 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 not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names

Jeannemarie Joyce, Esq. SPR24/2337 Page 3 August 30, 2024 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 response, the Center stated, “[a]ny such communications between the MCCA and Nystrom, Beckman & Paris are privileged and confidential attorney-client communications and thus are exempt from disclosure pursuant to Suffolk Constr. Co. v. Div. of Capital Asst. Mgmt., 449 Mass. 444 (2007).” Based upon the Center’s response, I find the Center has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. Further, where the request is for a report and the Center indicated that it withheld communications, I find the Center must clarify if it possesses the requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Conclusion Accordingly, the Center is ordered to provide Attorney Leung-Tat with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Attorney Leung-Tat may appeal the substantive nature of the Center’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Leung-Tat, Esq.