Chritson, David v. Massachusetts Commission Against Discrimination (SPR 20260699)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 16, 2026 SPR26/0699 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of David Chritson appealing the response of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 11, 2025, Mr. Chritson requested: 24 emails beginning on June 16, 2025 and continuing in a forward chronological order without skipping any email until the 24th email is reached. I am requesting only MCAD internal emails made or received by [a named individual]. I am limiting the request to emails containing specific keywords or subject lines such as [a list of 11 search terms.] Previous Appeal This request was the subject of a previous appeal. See SPR25/3705 Determination of the Supervisor of Records (December 29, 2025). In my December 29th determination, I closed SPR25/3705 in light of the Commission providing a supplemental response on December 19, 2025. Unsatisfied with the Commission’s response, Mr. Chritson petitioned this office, and this appeal, SPR26/0699, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to this office and Mr. Chritson on March 11, 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 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

Ruthy Barros SPR26/0699 Page 2 March 16, 2026 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. Current Appeal In his appeal petition, Mr. Chritson contends the following: MCAD redacted the entire substantive body of nine (9) emails authored by one of its staff members, Pamela M. Myers (leaving only subject lines, routing fields, and signature blocks visible). The redactions are categorical and rest on conclusory and unsubstantiated assertions of attorney-client privilege intended to conceal discriminatory animus or retaliation by MCAD. The Commission’s December 19th and March 11th Responses In its December 19, 2025 response, the Commission provided responsive records in redacted form. The Commission also provide a privilege log for each redaction made under the attorney client privilege. In its March 11, 2026 response, the Commission further explains the following: While the privilege log lists nine emails, there are actually only two emails at issue. The two emails were embedded in email chains that were replied to multiple times, which created nine copies of the emails. To be thorough, the MCAD listed each instance of the email on its privilege log. Both emails were part of the same email chain and were sent to the same seven MCAD investigation unit members. The original email in the chain arose during Mr. Chritson’s intake process and reasonable accommodation request, so the email chain was between the Investigator assigned to do Mr. Chritson’s intake, the Office Support Specialist who would assist Mr. Chritson in the intake, their supervisors, managers, and the MCAD ADA Coordinator. Attorney Advisor Pamela Myers was only added to the chain after Mr. Chritson made a pseudonym request so that she could provide

Ruthy Barros SPR26/0699 Page 3 March 16, 2026 legal advice on his specific request. The MCAD employs Attorney Advisors so that they may, as their titles suggest, advise the MCAD staff during the MCAD investigative process. There is a clear attorney-client relationship between Attorney Advisor Pamela Myers and the MCAD staff who she has been hired to advise. . . . [T]hese records are protected under the common law attorney-client privilege doctrine. A records custodian claiming the attorney-client privilege under the Public Records Law must show (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 (2017). (1) Communication of Legal Advice: The first email was sent by Attorney Advisor Pamela Myers on July 17, 2025, at 10:05 AM providing legal advice to MCAD staff by giving her evaluation of Mr. Chritson’s pseudonym request and grievance. Only strictly necessary staff dealing with Mr. Chritson’s matter were cc’d on the email, and no one outside the Commission has seen this email. Attorney-client privilege applies as it is a communication from an attorney providing a legal opinion after staff sought the attorney’s legal opinion. The second email was sent by Attorney Myers on the same day at 10:23 AM providing legal advice to MCAD staff by providing her opinion on how to best respond to Mr. Chritson’s pseudonym request and grievance. Only strictly necessary staff dealing with Mr. Chritson’s matter were cc’d on the email, and no one outside the Commission has seen this email. Attorney-client privilege also applies as it is a communication from an attorney providing a legal opinion after staff requested their opinion. (2) Confidentiality of Communications: All the communications in question were made in confidence between the Commission’s staff and its legal counsel. These emails were exchanged explicitly for the purpose of seeking legal advice on Commission work between a Commission attorney and Commission staff. At no point were these communications shared with any third parties outside the attorney-client relationship. They were intended to remain confidential to facilitate candid discussions necessary for effective legal counsel, and the number of staff included in the communications was appropriate. (3) Non-Waiver of Privilege: The privilege associated with these communications has not been waived. The emails were strictly confined to the attorney and relevant Commission staff. No part of the communications was disclosed to third parties or any individuals who were not part of the privileged relationship.

Ruthy Barros SPR26/0699 Page 4 March 16, 2026 Therefore, the integrity of the attorney-client privilege has been maintained. 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). Where the Commission 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, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the Commission has met its burden to withhold the responsive records pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Chritson 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: David Chritson