Chritson, David v. Massachusetts Commission Against Discrimination (SPR 20261310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 21, 2026 SPR26/1310 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination 1 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 15, 2025, Mr. Chritson requested the following: 24 distinct emails beginning on August 12, 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 SPR26/0006 Determination of the Supervisor of Records (January 15, 2026). In my January 15th determination, I closed SPR26/0006 in light of the Commission providing a supplemental response on January 12, 2026. Unsatisfied with the Commission’s response, Mr. Chritson petitioned this office, and this appeal, SPR26/1310, 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, 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 SPR26/1310 Page 2 April 21, 2026 § 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 states the following: This petition is limited to MCAD’s near-total redaction of three (3) files of email records: ... File #1500.3, #1500.4, and #1500.5 named in MCAD’s privilege log, containing email chain titled “Re: Chritson v. BMC, et al. #24NPA02755 & Chritson v. Ami Clifford #24BPA03585.” The Commission’s January 12th Response In its January 12, 2026 response, the Commission notes that in its previous response, the Commission “withheld six emails, and also included a detailed privilege log.” The Commission indicates that the three records, which are the subject of Mr. Chritson’s appeal, are being withheld under the attorney-client privilege, and the judicial deliberative privilege. 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,

Ruthy Barros SPR26/1310 Page 3 April 21, 2026 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 Commission states the following: For three of the six emails, we are invoking the judicial deliberative privilege, as one of the attorneys (Lynn Milinazzo-Gaudet) was also acting in her capacity as an administrative law judge (ALJ). She was in an adjudicatory role (Appeal Hearing Officer) in an agency that hears and makes deliberations on appeals filed before the agency. In her email, the ALJ is disclosing her mental impressions and thought processes that she is relying on to make a decision in the appeal. This is an absolute privilege that the SJC has recognized, which protects the judge’s “mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic material.” Matter of an Enforcement Subpoena, 463 Mass. 162, 174 (2012). The Court additionally ruled that “the privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.” Id. Our original privilege log noted that these emails were being withheld due to “deliberative privilege,” which is different from Exemption (d) (the deliberative process exemption). We have updated the privilege log to clarify that it is a “judicial deliberative privilege”[.] . . . All six emails were to and from the Commission’s attorneys seeking and giving legal advice. All six communications were made in confidence. All six emails have not been shared with any non- MCAD parties, so privilege has not been waived. The segregable parts of the emails that were not privileged (i.e., earlier emails in the email chain) were already produced to Mr. Chritson in the same production on December 30, 2025. Mr. Chritson argues that email headers are not privileged information and should be provided, but that information has already been provided to him in the privilege log. It is overly burdensome to require MCAD to produce the same information in a different format, and MCAD objects to any requirement that it do so. See Cue, Inc. v. Gen. Motors LLC, No. CV 13- 12647-IT, 2015 WL 4750844, at *10 (D. Mass. Aug. 10, 2015) (finding no justification to order a party to produce email headers containing non-privileged information such as the author, recipient, date, and subject matter where that information was already produced in a privilege log in an alternative format). Our objection notwithstanding, MCAD is producing these six emails to Mr. Chritson with the email headers and signatures unredacted as a courtesy and in good faith to resolve this appeal. The updated privilege log reflects this production.

Ruthy Barros SPR26/1310 Page 4 April 21, 2026 In its January 12th response, the Commission also provides a privilege log indicating that the three records at issue in this appeal are withheld under the attorney-client privilege, as well as the judicial deliberative privilege. 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. Where the Commission has met its burden to withhold the records pursuant to the attorney-client privilege, I find it unnecessary to opine on the Commission’s claims of judicial deliberative 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