Colman Herman v. Office of the Treasurer and Receiver General (SPR 20251768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 7, 2025 SPR25/1768 Cassandra M. Chung Paralegal and Records Access Officer Office of the Treasurer and Receiver General One Ashburton Place, 12th Floor Boston, MA 02108 Dear Ms. Chung: I have received the petition of Colman Herman appealing the response of the Office of the Treasurer and Receiver General (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2025, Mr. Herman requested the following records: [1] [C]opies of any and all agreements executed by the treasury with any and all law firms that provided services for the [identified individual’s] case. [2] [C]opies of any and all invoices submitted to the treasury by any and all law firms that provided services for the [identified individual’s] case. Previous Appeals The requested records were the subject of previous appeals. See SPR25/1423 and SPR25/1424 Determination of the Supervisor of Records (May 28, 2025) and SPR25/1507 Determination of the Supervisor of Records (June 6, 2025). In my June 6th determination, I learned that the Office provided Mr. Herman with a response on June 6, 2025. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR25/1768, 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 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

Cassandra M. Chung SPR25/1768 Page 2 July 7, 2025 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. Current appeal In his June 20, 2025 appeal, Mr. Herman stated, “[t]he following were redacted from the invoices: a) the individual item line entries, b) the number of hours for each entry, c) the hourly rate for each entry, and d) the total dollar amount for each entry — all information to which the taxpaying public is entitled. Regarding item 5a, entries can be redacted to omit legal strategy. [The Office] claimed attorney-client privilege, but it . . . failed to produce an index pursuant to Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 445-46, 455-61 (2007) [and the Office] also failed to inform me of my right to seek judicial relief.” The Office’s June 6th response In its June 6, 2025 response, the Office stated that it “identified the following responsive records and there are no more records responsive to your request . . . [1] Contracts - Morgan Lewis[; and] [2] Invoices - Morgan Lewis.” The Office redacted some portions of the responsive invoices and stated “. . . that the invoices requested are exempt from the Massachusetts public records law as they are protected by the attorney-client privilege and/or the attorney work product privilege.” 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., Inc. v. Div. of Capital Asset Mmgt., 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).

Cassandra M. Chung SPR25/1768 Page 3 July 7, 2025 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 response, the Office stated, “[i]t is the Treasury’s further position that these documents reflect communications that were made in confidence for soliciting and/or obtaining legal advice. Furthermore, Treasury has not waived the attorney-client privilege with respect to these documents or matters. Without waiving these privileges and exemptions, Treasury has redacted portions of the responsive legal invoices pursuant to attorney-client privilege and/or the attorney work product privilege. The redacted information includes but is not limited to details of meetings and communications between Treasury and its counsel, work performed by outside counsel and litigation strategy. Subject to the above exemptions, documents responsive to this request are attached.” Based on Mr. Herman’s claims, in conjunction with the Office’s response, it is unclear if the Office possesses any additional records responsive to his request that would show redactions to the individual item line entries, the number of hours for each entry, the hourly rate for each entry, and the total dollar amount for each entry. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Consequently, the Office must clarify if additional records exist. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Mr. Herman may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Cassandra M. Chung SPR25/1768 Page 4 July 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman