Dane R. Voris v. Somerset, Town of - Town Clerk (SPR 20251852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 28, 2025 SPR25/1852 Caitlin Hadala Town Clerk Town of Somerset Town Office Building 140 Wood Street Somerset, MA 02726 Dear Ms. Hadala: I have received the petition of Dane Voris, Esq. of Cooley LLP, appealing the response of the Town of Somerset (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2025, S. Blake Davis, Esq., of Alston & Bird, requested the following records: [1] All documents and other records relating to Town of Somerset’s approval to bring claims against OptumRx, Inc.; Optum, Inc.; OptumInsight, Inc.; OptumInsight Life Sciences, Inc.; OptumRx Discount Card Services, LLC; Optum Perks, LLC; OptumHealth Care Solutions, LLC; OptumHealth Holdings, LLC; Optum Health Networks, Inc.; UnitedHealth Group Incorporated; Express Scripts, Inc.; Express Scripts Administrators, LLC; Medco Health Solutions, Inc.; ESI Mail Order Processing, Inc.; ESI Mail Pharmacy Service, Inc.; Express Scripts Pharmacy, Inc.; Evernorth Health, Inc.; or Express Scripts Specialty Distribution Services, Inc. in the national opioid litigation, In re Nat’l Prescription Opiate Litig., 1:17-md-2804 (N.D. Ohio) and its member cases (the “Opioid Litigation”). [2] All documents and other records relating to Town of Somerset’s approval to file any complaint in the Opioid Litigation. [3] All documents and other records relating to Town of Somerset’s approval to amend or supplement its complaint in the Opioid Litigation. [4] All engagement agreements, engagement letters, memoranda of understanding, memoranda of agreement, letters of intent, contracts, or other 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

Caitlin Hadala SPR25/1852 Page 2 July 28, 2025 agreements (including any amendments, restatements, or modifications to such agreements) that [the] Town entered into with any law firms, attorneys, or other professionals (including, but not limited to . . .) to prosecute or assist with the prosecution of the Opioid Litigation or claims against any party or entity. [5] All documents authorizing any individual to act outside of a public hearing to authorize, approve, or consent to Town of Somerset’s filing or amending any lawsuit and all documents identifying any individuals with that authority. The Town, through its counsel, responded on March 17, 2025. Unsatisfied with the response, Attorney Voris petitioned this office and this appeal, SPR25/1852, was opened as a result. Subsequently, the Town, through its counsel, provided a supplemental response on July 11, 2025. 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. Current appeal In the June 13, 2025 appeal petition, Attorney Voris argues, [t]he Requests, submitted between February 27 and March 19, 2025, seek documents related to the Municipalities’ authorization to amend their years-old complaints in the ongoing opioid multidistrict litigation (“MDL”) in the Northern District of Ohio to assert claims against a new group of defendant entities. As discussed below, KP Law’s global March 17, 2025 response, issued on behalf of dozens of Massachusetts municipal clients—including the Municipalities—falls far short of the requirements of the Massachusetts Public Records Law. We respectfully request that the Supervisor of Records (“Supervisor”) direct the Municipalities to comply fully with their obligations under the Public Records Law. Specifically, we request that the Supervisor (i) direct the Municipalities to produce all nonprivileged documents responsive to the Requests, and (ii) to the

Caitlin Hadala SPR25/1852 Page 3 July 28, 2025 extent any responsive documents are withheld from production, require the Municipalities to provide a privilege log supporting such withholding . . . The Town’s March 17th and July 11th responses In its March 17, 2025 response, the Town asserts, [w]hile I appreciate your arguments concerning the nature of the requests, it is clear that the requests relate directly to ongoing litigation. You specifically reference that litigation, below. These requests are overbroad, vexatious, and appear intended to harass – intentionally seeking information protected by the attorney client privilege to further your clients’ litigation position. Your recitation of Massachusetts law concerning access to public records, while thorough, omits reference to 950 CMR 32.08(2)(b). That regulation provides, in part, the “Supervisor [of records] may deny an appeal for, among other reasons if, in the opinion of the Supervisor: the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation”. Clearly, these requests are because of, related to, and driven by, active multi-district litigation. We assert the attorney client privilege on behalf of our client as the communications sought specifically relate to litigation strategy. In its July 11, 2025 response, the Town cites Exemptions (a) and (d) of the Public Records Law, as well as attorney-client privilege to withhold the responsive records. The Town also referenced the pending litigation. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes

Caitlin Hadala SPR25/1852 Page 4 July 28, 2025 expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its July 11th response, the Town cites G. L. c. 30A, § 22, which provides in pertinent part as follows: if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure. G. L. c. 30A, § 22. Under Exemption (a), the Town explains, “[c]ertain provisions of the Open Meeting Law apply under Exemption (a), by derivation, namely: G.L. c. 30A, §21(a), which permits executive session meetings for several specifically-enumerated reasons, including litigation strategy; and G.L. c. 30A, §22(f), which allows the public body to withhold executive session meeting materials in their entirety, where public disclosure would defeat the purpose of the executive session. Thus, where the federal court litigation is ongoing, the purpose for the executive sessions to discuss litigation strategy have not been met, and any responsive documents from the [T]own that contain confidential executive session materials will be withheld.” 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, §

Caitlin Hadala SPR25/1852 Page 5 July 28, 2025 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 Town states the following: In considering exemption (d), the Supreme Judicial Court in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, “[t]he purpose of Exemption (d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision.” See Leeman v. Cote, Supervisor of Records, 21 Mass. L. Rep. 411 (Mass. Super. Ct., Aug. 30, 2006) (Ruling Upon Plaintiff’s Motion for Judgment on the Pleadings and Order for Judgment). The courts and the Supervisor of Records have construed exemption (d) as applying to records concerning ongoing litigation involving a public body. See, e.g., Lafferty v. Martha’s Vineyard Commission, Superior Court, C.A. No. 03-3397, 2004 WL 792712 (Mass. Super. Ct., April 9, 2004) (citations omitted) (Memorandum of Decision and Order on Plaintiff’s Motion for Summary Judgment). “The preparation of and involvement in litigation by [a public body] inherently entails the development of ‘policy positions’ by that [public body].… Further, the [public body] prosecutes a strategy for the litigation, and its ‘policy positions’ are frequently subject to change and refinement throughout the litigation.” Id., 2004 WL 792712 at *3. Here, as expressly acknowledge[d] by Attorney Voris, the appeals he is pursuing are for those towns that have brought litigation against his clients as defendants in the referenced litigation, National Prescription Opiate Litigation, the specific case that is the subject of the requests at issue. Accordingly, as the requested records relate directly to the pending litigation and strategy/policy decisions made and to be made with respect to that litigation, such records may be withheld in accordance with exemption (d). After an individualized review of the requested documents, the records requested are directly related to pending litigation matters involving the Towns, and, as such, they fall within the purview of exemption (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 (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.

Caitlin Hadala SPR25/1852 Page 6 July 28, 2025 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 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 July 11th response, the Town indicates: [t]he “attorney client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.” Suffolk Construction Co. v. Div. of Capital Asset Management, 449 Mass. 444, 448 (2007). Where the Town ha[s] not waived the attorney-client privilege with respect to such records, they will not be released. Confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are also protected under the normal rules of the attorney-client privilege and are not subject to disclosure under the public records law. Id. Work product, including legal strategies, opinions, and related deliberations, are also not subject to disclosure. See DaRosa v. City of New Bedford, 471 Mass. 446, 465 (2015). Records within your requests that reflect such privileged work product with the Towns’ attorneys are also exempt from disclosure. Here, where the request seeks decision-making communications between the clients and their attorneys as to whether to file a complaint in the ongoing litigation and/or whether to amend a complaint in the ongoing litigation, responsive records necessarily reflect that the municipal officials sought or received confidential legal advice from their attorneys in the attorneys’ capacity as such, which requests were made in confidence, and, further, that the privilege has not been waived by disclosure to some third party. Moreover, a detailed privilege log has already been provided. As such, responsive records other than those already provided are protected from disclosure pursuant to the attorney- client privilege. Upon review, the Town 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. This is because, the Town explained that “. . . where the request seeks decision-making communications between the clients and their attorneys as to whether to file a complaint in the ongoing litigation and/or whether to amend a complaint in the ongoing litigation, responsive records necessarily reflect that the municipal officials sought or received confidential legal advice from their attorneys in the attorneys’ capacity as such. . .” Further, the Town also asserted that “. . . requests were made in confidence, and, further, that the privilege has not been waived by disclosure to some third party.” Thus, the Town has

Caitlin Hadala SPR25/1852 Page 7 July 28, 2025 satisfied the requirements that the communications were made in confidence and privilege as to these communications has not been waived. Further, where the Town has provided a privilege log, including the names of the author and recipients, the dates, the substance, and the grounds for claiming the privilege per G. L. c. 66, § 10A(a), I find that the Town has met its burden to withhold the requested records pursuant to the attorney-client privilege. Consequently, I decline to opine on the Town’s claims under Exemptions (a) and (d) of the Public Records Law, supporting non-disclosure of the records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Voris 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: Dane Voris, Esq. Lauren Goldberg, Esq.