Dennaoui, Weessam v. Department of Public Health (SPR 20260635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 9, 2026 SPR26/0635 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 SPR26/0635 Page 2 March 9, 2026 [7] Any emails to and from [an identified email address] on May 6, 2024, including full emails with any applicable attachments. The Department initially responded on June 5, 2025 and July 17, 2025, assigning the request reference number BHPL-2025-484. Previous Appeal This request was the subject of a previous appeal. See SPR25/2261 Determination of the Supervisor of Records (August 13, 2025). In my August 13th determination, I ordered the Department to clarify its claims to withhold certain responsive records under the attorney work product doctrine and the attorney-client privilege. The Department responded on December 4, 2025. Unsatisfied with the Department’s response, Mr. Dennaoui petitioned this office and this appeal, SPR26/0635, was opened as a result. The Department’s December 4th Response In its December 4, 2026 response, the Department expanded upon its claims to withhold certain responsive records pursuant to the attorney-client privilege, and stated: …the responsive materials that were withheld pursuant to the attorney-client privilege in this matter (SPR25/2261), which included a privilege index, were identical to those that were provided to you in response to a similar request that you appealed to the SoR (SPR25/2470). Current Appeal In his appeal petition, Mr. Dennaoui stated that the responsive records are not identical to those referred to in SPR25/2470, and that the attorney-client privilege log is insufficient. Mr. Dennaoui also argued that the Department’s response failed to address the records withheld under the attorney work product doctrine. 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).

Helen Rush-Lloyd SPR26/0635 Page 3 March 9, 2026 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 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 initial 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

Helen Rush-Lloyd SPR26/0635 Page 4 March 9, 2026 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. In its December 4, 2025 response, the Department stated: With respect to the request at hand, the Department withheld records in response to this request (SPR25/2261) pursuant to the attorney-client privilege. In its response, the Department believes that it has fully complied with the public record legal requirements outlined in 950 CMR 32.06 (3)(d). Namely, it has provided you with a privilege log that contains the names of the authors and recipients of the communications, the date(s) of said communication, a general description of the subject of the communication, as well as a detailed explanation of the nature of the communication. We reiterate that a review of these records confirmed that the communications were made in confidence and that the privilege was not waived in any regard. Upon review of the Department’s June 5th privilege log, in conjunction with the Department response, the Department has provided a detailed description of the records withheld, including the author and recipients, the date, the substance of such records, and the grounds upon which the attorney-client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). Further, the Department has satisfied the requirement that the communications 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 has also confirmed that the communications were made in confidence and that the privilege as to these communications has not been waived. Therefore, I find that the Department has met its burden to withhold the identified records under the attorney-client privilege. Based on the Department’s response, however, it remains unclear how the records withheld solely 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). The Department must clarify this matter. 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

Helen Rush-Lloyd SPR26/0635 Page 5 March 9, 2026 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