Chris Van Buskirk v. Office of the State Auditor (SPR 20253700)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 15, 2026 SPR25/3700 Michael Leung-Tat, Esq. General Counsel Records Access Officer Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Leung-Tat: I have received the petition of Chris Van Buskirk, of WBUR, appealing the response of the Office of the State Auditor (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2025, Mr. Buskirk requested [1] [Ten categories of emails, including multiple lists of email addresses and keywords] between January 1, 2025, and November 21, 2025[.] [2] The hourly rate charged to the Office of the State Auditor by Donnelly, Conroy & Gelhaar for outside legal counsel services in support of the Office of the State Auditor’s efforts to pursue a legislative audit. [3] The total number of hours billed to date by Donnelly, Conroy & Gelhaar for outside legal counsel services in support of the Office of the State Auditor’s efforts to pursue a legislative audit. [4] The total amount the Office of the State Auditor has paid to Donnelly, Conroy & Gelhaar for outside legal counsel services in support of the Office of the State Auditor’s efforts to pursue a legislative audit. [5] The total amount [a named individual] has paid to Donnelly, Conroy & Gelhaar for outside legal counsel services in support of the Office of the State Auditor’s efforts to pursue a legislative audit. On December 2, 2025, Mr. Van Buskirk clarified that his request would “exclude newsletters, news alerts, mass mailings, etc. from my public records request as it pertains to [the 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

Michael Leung-Tat, Esq. SPR25/3700 Page 2 January 15, 2026 requests for emails].” The Office responded on December 15, 2025. Unsatisfied with the Office’s response, Mr. Van Buskirk petitioned this office, and this appeal, SPR25/3700, was opened as a result. Subsequent to the opening of this appeal, the Office provided a further response to Mr. Van Buskirk and this office on January 12, 2026. 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 Office’s December 15th and January 12th Responses In its December 15, 2025 response, the Office provides numerous responsive records, and indicates that it is withholding others pursuant to Exemption (a) of the Public Records Law and the attorney-client privilege. See G. L. c. 4, § 7(26)(a). In its January 12, 2026 response, the Office elaborates on its claims for withholding records. 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

Michael Leung-Tat, Esq. SPR25/3700 Page 3 January 15, 2026 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, 545-46 (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 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 January 12th response, the Office explains the following: The OSA is withholding two (2) records under G. L. c. 4, § 7(26)(a), Exemption (a) – the Statutory Exemption, which applies to records that are specifically or by necessary implication exempted from disclosure by statute. Under G. L. c. 268B, § 3 and 930 CMR 3.00 et seq., requests and responses for an opinion, advice guidance from the State Ethics Commission (SEC) are confidential and not public records. The records withheld are a request by the OSA to the SEC for an opinion and the SEC’s subsequent response; both of which are exempt from disclosure by statute. G. L. c. 268B, § 3 states in pertinent part as follows: The [State Ethics] Commission shall upon written request from a person who is or may be subject to the provisions of this chapter or chapter two hundred and sixty- eight A, render advisory opinions on the requirements of said chapters. An opinion rendered by the commission, until and unless amended or revoked, shall be a defense in a criminal action brought under chapter two hundred and sixty- eight A and shall be binding on the commission in any subsequent proceedings concerning the person who requested the opinion and who acted in good faith, unless material facts were omitted or misstated by the person in the request for an opinion. Such requests shall be confidential; provided, however, that the commission may publish such opinions, but the name of the requesting person and any other identifying information shall not be included in such publication unless the requesting person consents to such inclusion G. L. c. 268B, § 3(g).

Michael Leung-Tat, Esq. SPR25/3700 Page 4 January 15, 2026 930 C.M.R. 3.01(8) states in pertinent part: Advice given by the Commission’s Executive Director, General Counsel, and Legal Division Staff and advisory opinions issued pursuant to M.G.L. c. 268B, § 3(g), shall be confidential, regardless of whether such advice or opinion is written, oral, or electronic . . . 930 C.M.R. 3.01(8). Based upon the Office’s January 12th response, where the two records described above are restricted from disclosure in their entirety by the Legislature under G. L. c. 268B, § 3(g), and 930 C.M.R. 3.01(8), as they operate through Exemption (a) of the Public Records Law, I find the Office has met its burden to withhold these records under the Public Records Law. See G. L. c. 268B, § 3(g); 930 C.M.R. 3.01(8) (providing that “such requests” and “advisory opinions issued pursuant to M.G.L. c. 268B, § 3(g), shall be confidential”). 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, 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 January 12th response, the Office provides a privilege log listing seven responsive records, and also explains the following: With respect to above-referenced request, please be advised the OSA is withholding seven (7) responsive records under the attorney-client privilege. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007). The records in question are confidential legal communications between OSA staff, OSA General Counsel, OSA Counsel (Donnelly, Conroy & Gelhaar, LLP ), and the Office of the Attorney General undertaken for the purpose of

Michael Leung-Tat, Esq. SPR25/3700 Page 5 January 15, 2026 obtaining or providing legal advice. I note that the attorney-client privilege extends to communications as part of a prospective attorney-client relationship and in circumstances where a formal attorney-client relationship is never established. See United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358- 59 (D. Mass. 1959) (one of the elements of the attorney-client privilege is that “[t]he asserted holder of the privilege is or sought to become a client.”). Based on the Office’s January 12th response, where the Office has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, I find the Office has met its burden to withhold the seven records listed in its privilege log under G. L. c. 66, § 10A(a). Records in Existence; Possession, Custody, or Control Please be advised that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Regarding Items 2 through 5 of the request, in his appeal petition, Mr. Van Buskirk contends that: [I]t appears the Office of the State Auditor failed to respond to or acknowledge key portions of my records request . . . These are financial records that do not fall under any of the exemptions that the Office of the State Auditor has claimed. State agencies are required to disclose how they spend taxpayer dollars, and regularly do so, even when it involves legal assistance. In its January 12th response, the Office argues the following: Please be advised that Donnelly, Conroy & Gelhaar, LLP (DCG) has neither charged the OSA an hourly rate nor billed any hours to the OSA in support of the OSA’s efforts to pursue a legislative audit. Similarly, the OSA has not paid any amount to DCG in support of the OSA’s efforts to pursue a legislative audit. Accordingly, the OSA does not possess or maintain any records responsive to your requests related to DCG, including the request for the “total amount Michael Minogue has paid to Donnelly, Conroy & Gelhaar for outside legal counsel services in support of the Office of the State Auditor’s efforts to pursue a legislative audit.”

Michael Leung-Tat, Esq. SPR25/3700 Page 6 January 15, 2026 In this case, where the Office has confirmed that it does not possess additional responsive records, and the Office has no duty to create records, I find that the Office has met its burden in responding to Items 2 through 5 of the request under the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Van Buskirk 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: Chris Van Buskirk