Herman, Colman v. Massachusetts Water Resources Authority (SPR 20260072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2026 SPR26/0072 Angela D. Atchue, Esq. Associate General Counsel Massachusetts Water Resources Authority Deer Island 33 Tafts Avenue, Administration Building Room 111 Boston, MA 02128 Dear Attorney Atchue: I have received the petition of Colman Herman appealing the response of the Massachusetts Water Resources Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 15, 2025, Mr. Herman requested “all communications related to [his] public records requests over the past two months.” The Authority responded on December 30, 2025 and January 7, 2026. Unsatisfied with the Authority’s responses, Mr. Herman petitioned this office and this appeal, SPR26/0072, was opened as a result. While this appeal was pending, the Authority provided a supplemental response on January 20, 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. 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

Angela D. Atchue, Esq. SPR26/0072 Page 2 January 22, 2026 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 Authority’s December 30th, January 7th, and January 20th Responses In its December 30, 2025 response, the Authority stated, “[s]taff are completing the search of records and need additional time to process the production. We currently expect to produce responsive records on or before January 7, 2025.” In its January 7, 2026 response, the Authority provided responsive records, but withheld from production “communications between attorneys within MWRA’s Law Division and MWRA staff that constitute privileged attorney-client communications and work product…” In its supplemental response on January 20, 2026, the Authority provided a privilege log detailing the records withheld from production. Current Appeal In his appeal petition, Mr. Herman argued, “MWRA failed to comply with the requirements [of] Suffolk in its claim of attorney-client privilege.” It appears Mr. Herman is not contesting the withholding of records pursuant to the attorney work product doctrine. 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 this case, the Authority has provided a detailed description of the records withheld, including the names of the author and recipients, the date, the substance of such records, and the

Angela D. Atchue, Esq. SPR26/0072 Page 3 January 22, 2026 grounds upon which the attorney-client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). However, the Authority must clarify whether 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. Further, the Authority must provide information regarding whether the communications were made in confidence and demonstrate that the privilege has not been waived. The Authority must clarify these matters. Conclusion Accordingly, the Authority 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 (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. Herman may appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman