Antone, Amelia v. Attorney General's Office (SPR 20261360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 27, 2026 SPR26/1360 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Amelia Antone appealing the response of the Office of the Attorney General (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2026, Ms. Antone requested the following: [R]ecords concerning the handling, review, investigation, drafting, routing, and disposition of my Open Meeting Law complaint and related submissions concerning the Board of Registration in Veterinary Medicine. This request is made in light of the extraordinary delay preceding the March 25, 2026 determination and the need to determine what review, investigation, analysis, and decision-making actually occurred during that period. This request covers the period from August 7, 2025 through March 27, 2026. For clarity, this request concerns records relating to: 1. my August 7, 2025 Open Meeting Law complaint; 2. any supplements or additional materials I submitted thereafter; 3. the Board’s August 19, 2025 response; 4. my formal rebuttal/addendum; 5. the March 25, 2026 determination/declination; and 6. my response to the March 25, 2026 determination. I request the following categories of records: 1. Assignment, intake, and routing records All records, including records sufficient to show, when my complaint and related submissions were received, logged, assigned, reassigned, routed, escalated, tracked, or otherwise processed, including records identifying every person who handled, reviewed, supervised, approved, or materially 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

Hanne Rush, Esq. SPR26/1360 Page 2 April 27, 2026 participated in work on the matter. 2. Communications regarding the complaint All internal and external communications, including emails, memoranda, messages, notes, correspondence, or similar records, concerning my complaint and related submissions, including communications: a. within DOG; b. between DOG and the Board of Registration in Veterinary Medicine; c. between DOG and the Division of Occupational Licensure; and d. between DOG and any other agency, office, or official concerning the complaint, the Board’s response, the issues raised, or the resulting determination. 3. Review, investigative, and analytical records All records reflecting substantive review, investigation, analysis, or evaluation of the complaint, including notes, chronologies, summaries, issue lists, research notes, working memoranda, internal analyses, draft timelines, annotations, and records reflecting review of agendas, notices, minutes, exhibits, public-records materials, or other documents submitted by me or obtained from other sources. 4. Drafts and drafting history of the March 25, 2026 determination All drafts of the March 25, 2026 determination/declination, including redlines, tracked changes, comments, annotations, circulation copies, approval copies, and all records reflecting who reviewed, edited, commented on, approved, revised, or authorized the final version and when they did so. 5. Calendar, scheduling, and meeting records All calendar entries, invitations, scheduling records, meeting requests, call logs, meeting notes, conference notes, or other records reflecting meetings, calls, conferences, or discussions concerning my complaint or the resulting determination. 6. Records obtained from outside DOG All records received, requested, or obtained by DOG from the Board of Registration in Veterinary Medicine, the Division of Occupational Licensure, or any other source in connection with the handling of my complaint, including cover emails, transmittal emails, attachments, and follow-up correspondence. 7. Delay, staffing, backlog, prioritization, or inactivity records All records, including records sufficient to show, reflecting delays, staffing issues, backlog issues, workload discussions, prioritization decisions, inactivity, deferral, internal explanations, or other reasons relating specifically to the timing of DOG’s handling of my complaint and the issuance of the March 25, 2026 determination. 8. Finalization and transmission records All records, including records sufficient to show, when and by whom the March 25, 2026 determination was finalized, approved, signed off on, transmitted, and sent. 9. Records concerning timeliness, discoverability, and the decision not to reach

Hanne Rush, Esq. SPR26/1360 Page 3 April 27, 2026 the merits All records reflecting analysis, discussion, or evaluation of the timeliness of my complaint, the discoverability of the underlying Board actions, and any decision not to reach the merits of particular allegations. 10. Records concerning executive-session, confidential, or nonpublic materials All records reflecting whether DOG obtained, reviewed, requested, considered, or relied upon executive-session materials, nonpublic Board materials, or records claimed to be confidential in connection with my complaint, including records sufficient to identify the nature of such materials, when they were obtained, from whom they were obtained, and the circumstances under which they were reviewed or considered. 11. Records concerning the scope of review actually undertaken All records sufficient to show what issues DOG actually reviewed, what issues DOG declined to review, what materials DOG considered in doing so, and whether any factual questions were left unresolved because of timing, access, staffing, or other limitations. The Office responded on April 10, 2026. Unsatisfied with the Office’s response, Ms. Antone petitioned this office, and this appeal, SPR26/1360, 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, § 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 April 10th Response In its April 10, 2026 response, the Office provides numerous responsive records in redacted form, and cites Exemptions (c), (d), and (f) of the Public Records Law, and the attorney-client privilege for redacting the records and for withholding others. See G. L. c. 4, §

Hanne Rush, Esq. SPR26/1360 Page 4 April 27, 2026 7(26)(c), (d), (f). Current Appeal In her appeal petition, Ms. Antone argues the following: I respectfully request review on two narrow grounds. First, the AGO’s response states that it has “no records responsive to Requests 7 or 10.” However, the AGO’s own production includes a March 12, 2026 email stating that my complaint was taking longer because the office was “currently short staffed.” Request 7 specifically sought records reflecting delay, staffing issues, backlog, prioritization, inactivity, or related reasons for the timing of the AGO’s handling of my complaint. Under those circumstances, I respectfully request review of the AGO’s statement that it has no records responsive to Request 7. This issue is material because the complaint was assigned for attorney review on September 11, 2025, and the AGO did not issue its March 25, 2026 declination until more than six months later. The resulting declination was brief and largely turned on timeliness/discoverability grounds. Given that timeline, and given that the produced file itself contains at least one staffing-related explanation for the delay, I respectfully request the clearest possible accounting of records responsive to Request 7. Second, the AGO states that draft versions of the declination and the internal case file cover sheet are being withheld in full. The production confirms that such records existed and were part of an actual drafting and approval process, including circulation of a document titled “MA B. Reg in Vet Med_Antone_v1.docx” on March 16, 2026 and a final version on March 23, 2026. I respectfully request review of whether the AGO has provided a sufficiently specific basis for withholding those records in full, and whether any non-exempt portions, metadata, or more particular description should be produced. I am not seeking review of every redaction or withholding in the response. This appeal is limited to the two issues above. Item 7 - “Delay, staffing, backlog, prioritization, or inactivity records” In its April 10th response, the Office states, “please be advised that the AGO has no records responsive to Requests 7 or 10.”

Hanne Rush, Esq. SPR26/1360 Page 5 April 27, 2026 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 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). In a telephone conversation with this office on April 27, 2026, the Office confirmed that it does not possesses any additional records responsive to Item 7 of the request. Where the Office has confirmed that it does not possess additional records responsive to Item 7 of the request, and the Office has no duty to create records in response to a request, I find that the Office has met its burden in responding to Item 7 of the request under the Public Records Law. Item 4 - “Drafts and drafting history of the March 25, 2026 determination” In its April 10th response, the Office cites Exemptions (d) and (f) of the Public Records Law, and the attorney-client privilege for withholding certain records. Specifically, the Office argues the following: Please be advised that draft versions of the declination and internal case file cover sheet are being withheld in their entirety in accordance with G.L. c. 4, § 7, cl. 26, as they contain or constitute: (d) intra-agency, i.e., internal, communications between Assistant Attorneys General that reveal legal and policy positions of the AGO and reflect an ongoing deliberative process; namely, the Division of Open Government’s legal analysis, techniques and procedures for investigating and resolving Open Meeting Law complaints, the disclosure of which would taint this deliberative process by inhibiting the candid thinking that results in reasoned and legally defensible determinations, now and in the future, and/or that constitutes privileged attorney work product as articulated in DaRosa v. City of New Bedford; and (f) investigatory material necessarily compiled out of the public view that, the disclosure of which would reveal confidential investigative techniques and procedures and would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Additionally, because they are internal communications between Assistant Attorneys General that render legal advice, they are also the type of confidential communications concerning, and decisions resulting in, one course of action over another and are the very communications that are protected under the attorney-client privilege as articulated in Suffolk Const. Co., Inc. v. Division of Capital Asset Management.

Hanne Rush, Esq. SPR26/1360 Page 6 April 27, 2026 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). 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 (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of 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). Id. 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. In this case, the Office has explained how the responsive records constitute “opinion” work product, as required under Exemption (d). See DaRosa at 448. Further, the Office has explained that the responsive records are interwoven with opinions or analysis leading to opinions. See DaRosa at 448. Consequently, based on the information provided in the Office’s April 10th response, I find that the Office has met the burden to withhold the responsive records pursuant to Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such

Hanne Rush, Esq. SPR26/1360 Page 7 April 27, 2026 disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In this case, where the Office has met its burden to withhold the responsive records under Exemption (d), I decline to address the Office’s claims for withholding the records under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(d), (f). 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 Office has met its burden to withhold the records under Exemption (d), I decline to address the Office’s claims for withholding the records under the attorney-client privilege.

Hanne Rush, Esq. SPR26/1360 Page 8 April 27, 2026 Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Antone 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: Amelia Antone