Iris A. Fhirinne v. Department of State Police (SPR 20251483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1483 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Iris A. Fhirinne appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2024, Ms. Fhirinne requested the following: All email communications sent between the dates of 3/11/2024 through and including 3/29/2024 between Chief Legal Counsel Jennifer Staples and any member of the Public Records Unit, including but not limited to [a list of 14 individuals.] On October 31, 2024, Ms. Fhirinne narrowed the scope of the request to a list of seven individuals. Previous Appeal This request was the subject of a previous appeal. See SPR24/3232 Determination of the Supervisor of Records (December 13, 2024). In my December 13th determination, I ordered the Department to provide Ms. Fhirinne with a response to her modified request. Subsequently, the Department responded on April 17, 2025. Unsatisfied with the Department’s response, Ms. Fhirinne petitioned this office, and this appeal, SPR25/1483, 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

Allison Mondello SPR25/1483 Page 2 June 10, 2025 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 Department’s April 17th Response In its April 17, 2025 response, the Department cites Exemption (d) of the Public Records Law, and the attorney-client privilege for withholding responsive emails. See G. L. c. 4, § 7(26)(d). 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of 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). Id. at 448. It also

Allison Mondello SPR25/1483 Page 3 June 10, 2025 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. In its April 17th response, under Exemption (d), the Department argues the following: G.L. c. 4, §7, cl. 26 (d) deliberative process exemption permits 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.” See DaRosa v. City of New Bedford. 471 Mass. 446 (2015) (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)). The emails consist of opinion work product and as a result are being withheld pursuant to the work product doctrine or G.L. c. 4, §7, cl. 26 (d). In this case, the Department has not met its burden to withhold the responsive records under Exemption (d). Specifically, it is unclear from the Department’s response how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Department has not demonstrated that the responsive records, in their entirety, are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. The Department must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 (2007); 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. 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,

Allison Mondello SPR25/1483 Page 4 June 10, 2025 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 April 17th response, under the attorney-client privilege, the Department argues the following: After review, the Department has determined that the above emails are being withheld under the attorney client privilege and/or work product doctrine. . . . In this instance, “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 450 (2007). G.L. c. 4, §7, cl. 26 (a). The emails consist of confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance. As a result, the emails are being withheld pursuant to the attorney client privilege or G.L. c. 4, §7, cl. 26 (a). Based on the Department’s response, it is unclear which specific records have been withheld pursuant to the attorney-client privilege. Specifically, the Department must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, although the Department has explained that the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, the Department must clarify whether the communications were made in confidence, and that the privilege as to the communications has not been waived. Conclusion Accordingly, the Department is ordered to provide Ms. Fhirinne 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. Ms. Fhirinne may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Allison Mondello SPR25/1483 Page 5 June 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Iris Ann Fhirinne