Weessam Dennaoui v. Department of Public Health (SPR 20252261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2025 SPR25/2261 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street, Second Floor Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Weessam Dennaoui appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 4, 2025, Mr. Dennaoui requested: [1] All emails sent to or received from [an identified email address] on April 1, 2024, and April 2, 2024, including full emails with any applicable attachments. [2] All emails exchanged between [an identified email address] and [an identified email address] from May 2, 2024, to May 3, 2024, including full emails with any applicable attachments. [3] All emails exchanged between [an identified email address] and [an identified email address] on March 22, 2024, and March 29, 2024, including full emails with any applicable attachments. [4] Any emails sent to [an identified email address] on March 29, 2024, regardless of sender, including full emails with any applicable attachments. [5] All emails exchanged between [an identified email address] and [an identified email address] on March 22, 2024, including full emails with any applicable attachments. [6] All emails exchanged between [an identified email address] and [an identified email address] on March 16, 2024, including full emails with any applicable attachments. 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

Helen Rush-Lloyd SPR25/2261 Page 2 August 13, 2025 [7] Any emails to and from [an identified email address] on May 6, 2024, including full emails with any applicable attachments. The Department responded on June 5, 2025 and July 17, 2025, assigning the request reference number BHPL-2025-484. Unsatisfied with the Department’s responses, Mr. Dennaoui petitioned this office and this appeal, SPR25/2261, 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. 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 June 5th and July 17th Responses In its June 5, 2025 response, the Department provided a USB drive containing responsive records and cited the Fair Information Practices Act (FIPA) as it operates through Exemption (a), as well as Exemptions (b), (c) and (f) of the Public Records Law in support of redacting the records. The Department also stated that it withheld additional responsive emails pursuant to the attorney-client privilege and the attorney work product doctrine. In a subsequent letter to the Department on July 10, 2025, Mr. Dennaoui requested that the Department reconsider its response and stated, “[m]y sole objection is to the Department’s assertion of attorney-client privilege as grounds for withholding certain communications...” In its July 17, 2025 response, the Department stated, “[p]lease be advised that the Department will not reconsider the attorney-client privilege designation for any such communication or related documents, and therefore will not be supplementing the previously provided Response. The Department considers this request closed.”

Helen Rush-Lloyd SPR25/2261 Page 3 August 13, 2025 Current Appeal In his appeal petition, Mr. Dennaoui stated: The Department’s response presumes an attorney–client relationship between [an identified individual] and the other recipients but does not demonstrate that any of the nineteen referenced communications satisfy the legal standard for privilege… The Department’s privilege log fails to demonstrate that the withheld records reflect legal strategy or mental impressions prepared in anticipation of litigation, as required for opinion work product… Mr. Dennaoui is not appealing redactions to the responsive records under Exemptions (a), (b), (c) or (f) of the Public Records Law. Attorney Work Product 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 opined on the issue of attorney work product in DaRosa v. 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) of the Public Records Law. DaRosa, 471 Mass. at 448. It also 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. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that

Helen Rush-Lloyd SPR25/2261 Page 4 August 13, 2025 the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. 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, 450 n.9 (2007); 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). In its June 5, 2025 response, the Department stated, “[c]ommunications reflecting attorney work product and attorney-client privilege have been withheld from production.” In addition, the Department provided an index listing all of the responsive emails that were withheld under the attorney-client privilege and/or the attorney work product doctrine, including the dates, author, recipients, substance, and grounds for claiming the privilege. Based on the Department’s response, it is unclear how all of the records withheld under the attorney work product doctrine constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. The Department also has not demonstrated that all of the withheld information is not factual in nature, nor that the withheld information is interwoven with opinions or analysis leading to opinions. See Id. Further, it is unclear how the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). In addition, although the Department has provided a detailed description of each record withheld pursuant to the attorney-client privilege as required under G. L. c. 66, § 10A(a), the Department has not established that the all of the communications withheld under the attorney- client privilege were between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such. The Department must also provide

Helen Rush-Lloyd SPR25/2261 Page 5 August 13, 2025 further information regarding whether the communications were made in confidence and demonstrate that the privilege as to these communications has not been waived. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Dennaoui with a response to his 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. Mr. Dennaoui may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Weessam Dennnaoui