Shorey, Stephen (SEC)= From: Sent: To: Cc: Subject: Matthew Stout Thursday, June 23, 2016 12:08 PM SEC-DL-PREWEB Shorey, Stephen (SEC); Rastellini, Patricia (SEC); Williams, Shawn (SEC) Fwd: Herald records request Hello, My name is Matt Stout and I am submitting a request to the Secretary of State's office to refer the below matte to the Attorney General's office foran enforcement action. The .below response from the MBTA (via Joe Pesaturo) concerns SPR 16/183, in which on June 10, the Secretary of State's office, ordered the MBTA to produce a revised response to my request for a copy of a lea-v management consultant's report. The MBTA to date has refused to release it, arguing the entire report is attorney-client privileged. The Secretary of State's office has determined, through its reading of the state publi records law, that the· report doesn't meet such a standard. The MBTA, however, says it disagrees and as of today, continues to defy the Secretary of State's ·order. The MBTA is not making any new legal argument in refusing to comply, and thus, I am requesting.the recommendation of an enforcement action in order to protect the integrity of the public records law and the Secretary of State's reading of it. I can be reached on my cell phone (203-507-6484) with any questions. I appreciate your attention to this matter and look forward to your decision. Thanks, Matt ----------Forwarded message---------From: Pesaturo, Joe Date: Mon, Jun 20, 2016 at 2:46 PM Subject: Re: Herald records request To: Matthew. Stout Hi Matt - the MBTA respectfully disagrees, and maintains its position that the document is attorney-client privileged in its entirety. On Jun 20, 2016, at 1:32 PM, Matthew Stout wrote: Hi Joe, I am following up on a June 10 letter the Secretary of State's office said .MI. Englander and the MBTA ordering it to provide a revised response to me following my request for the leave · management consultant's report prepared for the MBTA. The Secretary of State's office determined the MBTA had failed to "establish how the report in its entirety, falls within the . attorney-client privilege." Also, the office d~termined that the MBTA has "not justified its claim that there is no information within the report that is subject to disclosure." 1 am The order was to do so without delay. Given we are now I 0 days removed from the letter, I requesting that the MBTA release the report, given that doing so would be consistent with the Secretary of State's .order and that the Ts past arguments against its release have now been repeatedly overruled by the T. I appreciate your help With this and look forward to your response today. Feel free to reach me on my cell phone (203-507-6484) a? well. I am working on a 6 p.m., deadline. Thanks, M:itt Matt Stout Bost.on Herald State House reporter. matthew.stout@bostonherald.com C: .(203) 507-6484 This email has been scanned by MessageLabs and contains np viruses or malware. This email/electronic message; mcluding any attached files, is being sent by the MBTA. It is solely intended fc the recipient(s) arid. may contain information that is proprietary, confidential, legally privileged, and/or exempt from disclosure pursuant to state and federal law. If you have received this message in error or are not the intended recipient(s), please notify the sender immediately by reply, and delete all copies oftbis email/electronjc message and any attached files from your computer. If you are the intended recipient(s): you may use the information contained in this email/el~ctronic message and any attached files only as authorized b: the MBTA. Any unauthorized use, dissemination, or disclosure of this email/electronic message and/or its attached files is strictly prohibited. ,. Matt Stout Boston Herald State House reporter · matthew.stout@bostonherald.com C: (203) 507-6484 2 'Ihe Commonwealth of MassachIJ.setts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shaw11 A. W.illi.ams Superv.isor ofRecords June 10, 2016 SPR16/183 Mr. J obn Englander, Esq. General Colinsel MassDOT ari,d M:BTA 10 Park Plaz~ Suite 3910 Boston, MA 02116 Dear Attorney Englander: I have received the petition of Matthew Stout of the Boston Herald seeking further . consideration of my previous written determination regarding the Massachusetts Bay Transportation Authority's (META) respons~ to a request for public records. See SPR16/183 Determination ·of the Supervisor of Records (March 24, 2016). Specifically, :MT. Stout requested records related to a leave management consultant's recommendations to the M13TA. The Public Records Law; custodial burden ofspecificity; fees The Public Records Law strongly favors disclosure by creating a presumption that all · governmental records are publi<;: records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). ''Public records" is broadly defined to include all documentary materials or clata, regardless of physfoal : form or characteristics, made or received by any officer or employee of any town 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, § I 0(c); see also District Attorney for the · Norfolk: Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the.burden of establishlng"tb.e · 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 ~ust be provided_ G. L. c. 66, § lO(a); see also 950 C.M.R 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). .Once fees are paid, a records custodian must provide the responsive records. OneAshburton.Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 -WWW.sec.state.ma. us/pre MI. John Englander, Esq. Page2 June 10, 2016 SPR16/l83 Previous determination Iv.fr-. Stout's :request was the subject of a p.t eviuu& a._pp~al ti.ml two (2) deterrnirn1.tions. See SPR16/054 Determination of the Supenilsor.ofRecords (February 18, 2016); SPR16/183 Determination of the Supervisor of Records (March 24, 2016). Inmy March 24 determination, I found the MBTA failed to meet its blirden of explaining with specificity how.the responsive report, in its entirety, is exempt from disclosure pursuant to the attorney-client privilege. AB a res'ult, I ordered the lv03TA to provide MT. Stout with the responsive report or a revised _response to the request. ' In a letter dated April 6, 2016, the .:META provided a response·to· the Mcirch 24 order. In this resporue th~ .:MB TA qonti:ri.ues to. withhold the entirety of the report under the common law attorney-client privilege. Ivrr. Stout informed this office that he objects to this response and requests further action from this· office. · In camera review In order to facilitate my review of the matter, the JVIBTA provided this office with an unredacted copy of the responsive report for an in camera review. I thank the MB TA for its cooperation. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L.c. 66, § 1. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v . Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has.found that the Supervisor of Records may make ~'a decision ... delineating what documents among . . . requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & I epsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). The attorney-client privilege pertains ·only to di_sclosure of confidential client communications; it does not apply to mere facts. See Upjohn Co. v. United States., 449 U.S. 383, 395 (1981). . SPR16/183 MI. John Englander, Esq. Page3 June 10, 2016. a Nonexempt portions of public record must be segregated and prov_ided In its response, the l\1BTA proviJc;d. affida:vits from employees o:fthe lvIDTA a:o.d Morgan, Brown & Joy, LLP to su_pport its position that the report was made "for the sole purpose of obtaining legal advice and assistance," was intended to remain confidential, and that the claimed attorney-client privilege has not been waived. The MBTA aiso claims that segregable portions of_the report c~ot.be prqvid~d beca~e "it is neither_appr.op.riate under theJaw., nor. ____ possible. as a matter of fact, to segregate portions of the document that contain legal advice as both the legal advice and the facts communicated to counsel under privilege are infused throµghout the entire report." Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a). Further, documents containing privileged information that can reasonably be segregated must be disclosed and redacted. See Judicial Watch, Inc. v. United States Postal Serv., 297 F. s·upp. 2d 252, 271 (D.D.C. 2004) (explaining a response must include "a segregability analysis fm every document withheld in full, identifying the proportion of ,· privileged and non-privileged information, and must explain specifica1ly why the documents cannot be redacted and produced"). Upon review of the materials submitted in camera, I find the IvffiTA has failed to establish how the.report in its entirefy, falls within the attorney-client privilege. The MBTA has not justified its claim that there is no information within.the report that is subject to disclosure. See Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 248 (1977) (holding that "the Air Force did n.ot adequately justify its 2laim that there was no non-exempt information which was reasonably segregable.... "). In.particular, it is unclear how facts that would otherwise be public constitute privileged commUni.cations. See id. at260 (explaining the All- Force relied on "overly broad" interpretations of the attorney-client privilege when , withholding non-confidential information). Conclusion For the reasons discussed above, the META is hereby ordered without delay to p~ovide ~4r ·sto~ a wvis@d rBBp e:r consistent wifu Uris order, the Public Records Law and its Regulations and applicable case 1 . A copy of any such response ·must be provided to this office. It is preferable to send le onic copy of this response to this office at pre@sec.state.ma.us. u • • illiams. cc: MI. Matthew Stout Shorey, Stephen (SEC) From: Sent: To: Subject: Attachments: Breen, Marie (DOD Wednesday, April 13, 2016 3:24 PM stephen.shorey@sec.state.ma.us FW: SPR 16/054 -·In Camera Inspection Attorney-Client Privileged Leave Memorandum 10.13.15.pdf Attorney Shorey, Pursuant to your request and in connection with the above-referenced public records request appeal to the Supervisor of Public Records, the Massachusetts Bay Transportation Authority (''.MBTA") is providing a cop~ of the legal memorandum prepared by the law firm of Morgan, Brown & Joy, LLP. Tb.is memorandum is · submitted for the purpose of an in-camera inspectio~ by the Supervisor of Public Records. The MB TA understands that pursuant to 950 CMR 32.08 aµd M.G.L. c. 66 s. IO(a), the memprandum Will not be retained by your office and does not fall within.the de:finltion of public records by this submission. The MBTA does w waive attorney-client privilege by providing this memorandum for in-camera inspection and expressly reserve all applicable privileges. · Please contact me if you need any additional information or if you have any questions.concerning this matter. Thank ·you, · Marie Marie Breen First Assistant General Counsel MassDOT and META Ten Park Plaza Boston, MA 02116 Office: 857-368-8779 Cell: 617-3 56-4988 Marie.Breen@dot.state.ma.us - - -.. .p----- - -- -- - - · - - - - - From: Breen1 Marie (DOT) Sent: Monday1 March 211 2016 7:12 PM To: 'stephen.shorey@sec.state.ma.us' Subject: SPR 16/054 - In Camera Inspection Attorney Shorey, Pursuant to your request and in connection with the above-referenced public records request appeal to the Supervisor of Public Records, the Massachus~tts Bay Transportation Authority ("MBTA") is providing a copy of the legal memorandum prepared by the law firm of Morgan, Brown & Joy, LLP. Ibis memorandum is submitted for the purpose of an in-camera inspection by the Supervisor of Public Records. The 1v1BTA strongl) maintains that this memorandum is exempt from disclosure as an attorney-client privileged coII?IDunication in . which legal advice has been provided to the MBTA, as more fully set forth in a letter to you from John 1 -~ . Englander dated March, 2016. The 1\llBTA understands that pursuant to 950 c.MR 32.08 and M.G.L. c. 66 s. 1O(a), the memorandum wiil not be retained by your office and does not fall within the definition of public ·records by this submission. The :MBTA does not waive attorney-client privilege by providing this memorandum for in-c~era inspection and expressly reserve~ all applicable privileges. Please contact ro.e if you need any additional information or if you_have any questions concerning this matter. Thank you, Marie -Marie Breen First Assistant.General Counsel MassDOT and MBTA Ten Park Plaza Boston, MA 02116 Offl.ce: 857-3 68-8779 Cell: 617-356-4988 Marie.Breen·@dot.state.ma.us 2 Shorey, Stephen (SEC) To: Matthew Stout Friday, April 08, 2016 11:48 AM Shorey, Stephen (SEC) ~c: $EC-DL-PREWEB Subject: Re: Herald question on From: Sent: · MB"~A response Tu Stephen, Good·to spefil<: with you today. I am writing to challenge the latest denial provided by the l\IBTA (dated April regarding my_request for the full report prepared by the MBTA's 11leave management consultant. 11 It follows th Secretary of State's determination (16/183), dated March 24, ordering the MBTA to release the full report. . . I am formally appealing the l\IBTA's decision to co:p.tinue to deny the.release of the record and it's reasoning fc doing so. I can be reached ori my ceU.phone (203-507-6484) or by email going forward. I appreciat~ your help in this matter and look-forward to the office's decision. . · Thanks, . Matt On Thu, Apr 7, 2016 at 3 :20 PM, Matthew Stout wrote: .Hi Stephen, I wanted to follow up with you-about the MBTA'!l response (sent last night to the Secretary of State and me) to ... your office's March 24 determination on the records request I appealed. As I'm sure you saw, the JvfBTA is · maintaining that the records I am seeking, and that the Secretary of State's office ordered it to prC?du ce, are not public record, under the attomey.,client exemption. I am trying to determine what the.next step is, specifically whether I need to file another appeal to be.gin anothe review by the Secretary of State and thus another determination of whether the records should be released. I arr ~vailable on' my cell phone (203-507-6484). I appreciate the help and look forward.to ·hearing.from you. Matt Stout ' Boston Herald. State House reporter . matthew.stout@bostonherald.com C: (203) 507-6484 1 Matt Stout Boston f[erald State House reporter matthew. stout@bostonherald.com .--: ; \._L.. -'"'01'• /:'0'7 ""484 \..., •. j ~) I I - t) . -. , 2 Williams Shawn (SEC) 1 From: Sent: .To: Cc: Subject: -4.ttachments: Breen, Marie (DOD Wednesday, April 06, 2016 8:26 PM SEC-pl-PREWEB Lyons, Maryellen (DOT); Krupanski, Susan (MBTA); Englander, John (DOD SPR 16/183 JEtoSPR 4-16-16.pdf; Affidavit JS.pdf; Affidavit of Jaclyn L Kugel] revised.PDF; advisorysjc-suffoikconstrud.ion.pdf Attached please find MBTA letter with referenc~d attachments pertaining to SPR 16/183. Marie Breen Fir~AssistaJi.t General Counsel MassDOT and MBTA Ten Park Plaza Boston, fMA 02116 · Office: 857-368-8779 Cell: 617-356"4988 Marie.Breen@dot.state.ma.us Charles D. Baker, Governor Karyn·E. Polito, Ueutenant Governor Stephanie Pollack, MassDOT Secretary & CEO Massachl!Setts Department of Transportation April ·6, 2016 Mr. Shawn A W ilHa.rns Supervisor of Records Office of the Secretary of the Commonwealth . One As}lburton Place, Room 1719 Boston, MA 02108 . Re: SPR16/183 Dear Mr. Williams: to This letter is in response your determination of March 24, 2016 in the above rna.tter. The MBTA maintains that the report of the MBTA's legal cqunsel, Morgan, Brown & Joy, LLP . ("MBJ") is exempt from disclosure as an attorney-client privileged communication, per Suffolk Constr. Co. v. Div. of Capital Asset Mgt.,· 449 Mass. 444 (2007). You have stated that .in its initial respons~s, the MBTA released a summary of the legal recommendations, but has wi~beld the full report. In fact, MJ3TA released two slides that were ·prepared for public presentation. You have also suggested that portions of the legal report can be segregated to protect :privileged communications, however it is neither appropriate under the law, nor possible as a matter of fact, to segregate portions of the document that contain legal advice as both the legal advice and the faGts communicated to counsel under priv.ilege are infused · throughout the enfue report. AE you requested in the March 24th letter, set forth below and in the attached affidavits is a detailed e;planation of the basis for the asserted.privilege, which establishes both that the report "constitutes privileged comm~nicatiqns received from a client during the course of his search for legal advice from his attorney,'~ as well as advice provided by attomey to client, w.fthin the meaning of Suffolk Construction. 1 In Suffolk Construction the Court explicitly held that, ill the context of a public records - - - - - - --TfeeE}tXUue®w.S:rt.t';""',•-1'GoofiEl@atial-semmaffieatises emrsoo pooJ:ie-efiieeFS-frflB-Bffif>}eyees afis governmentaJ entities and their legal counsel undertaken for the purpose of obtaining legal a,r:Ivice or assistance are protected l,IIlder the normal rules of the attorney-cliefit privilege." 449 Mass. at 4,?0. Specifically, the Court reasoned that "[p]ublic employees must routinely seek advice from counsel on how to meet their obligations.to the public" arid that "it is in the 1 The other elements of the Suffolk Constroctio11 test---thal .the communications be made in confidence and that the privilege not have been waived--do not appi!ar to have been questioned by the Supervisor. In any event, as indicated by the accompanying affidavits of Jessie Saintcyr and Jaclyn Kugell, those requirements have in fact been meL Ten Park Plaza, Suite 4 160, Bruton, MA 02 r J 6 Tel: 857-3.68-4636, TIY: 857-368-0655 www.mass.gov/massdot public's interest that they be able to do so in circumstances that encourage complete candor, without. ..fear that what they communicate will be disclbsed to the world." Id.. . The Court wen~ on to state that "[i]f counsel. .. are unable to gather all of the relevant facts, they will less likely serve the public's interest... by.; .ensunng government officials' compliance with the law." Id. Accordingly, the Court found "that communications between government agencies and agency counsel are protected by the privilege as long as they are made confidentially and for the pu~ose of obtaining Jegal advice for the agency." Id. at 451 (intern.al citatiqns omitted). It is also important to note that "the information contained within a communication need not itself be confidential forthe communication to be deemed 'p rivileged; rather the communication must be made in confidence ... " Commissioner of Reven!-'-e v. Comcast Corp.., 453 Mass 293, 305 (2009). . . Subsequent to the Suffolk Construction decision, the Attorney General. is~ued an Advisory to guide governmental agencies in interpreting and applying that decision. See, "Advisory on July 2007 Ruling Regarding Confidenti~ Communications Between Public Entities and Their Attorneys", Office of the Attorney General ("Advisory:'). _A copy of the Advisory is enclosed. In the Advisory, the Attorney General notes that the essenc~ of the Suffolk Construction ~ecision is that "governmental officials rnu5t be able to obtain quality legal advice essential to ,. the faithful d.i~charge of thttir duties." Advisory, p. l. The Advisory provides the ~xample of a written communication in which town counsel advises his/her inmiicipal zoriing board client bow to rule on a specific Jand use matter (Id.). The Attorney General concludes that such communication is a p.i;otected attorney-client communication because t:Own counsel was providing "specific leg~ advice in a letter directed to the client." The Attorney General distinguishe_d this from communication unrelated to proyiding advice, such as invoicing the . client for Jegal services oi' a memorandum to the file prepar~ by counsel, both of which are clearly distinguishable from the subject document. · Ta~repeft: fit :issae in-t:ft~r-ecisely minors-the exa:mpie pmvideti iu che Ad'Visory ~ to a communication that is protected by the attorney-client privilege. As set forth in the accompanying affidavit of Jessie Saintcyr, the MBTA's Assistant Secretary of Human Resources, sbe sought legal advice to assist the MBTA in navigating the legal i$sues involved in issues relating to attendance and leave management She and others communicated information regarding current leave practices and policies for the sole purpose of obtaining le!ml advice and assistance. It was always tbe intent that these communications would 0 . ' remain confidential. The agreement between the MBTA and MBJ charged MBJ with t~.e task of auditing and reporting on employee absences leaves "to ensure compliance with st.ate and and federal law." . ~e resulting . . report contained an analysis of the law, and provided specific legal advice to the .MBTA regarding employee absence and leave management~ (see · accompanying affidavits·of Jessie S.aintcyr and Jaclyn KugeH). As noted by the Attorney General ,in her Advisory, in light of Suffolk Construction the attorney-client privilege is "practically invio~able" and is distinguishable from attorney work product. (Advisory, p. 2). The MBTA must be able to obtain quality legal advice essential to the faithful discharge of its duties·and responsibilities. There is no doubt·that t~e .MBJ report was a confidential communication to the client (MBTA) for the purpose of providing specific leg~ aO.v.ice concerning.issues relating to attendance and leave management. There is no means to segregate the memo into privileged and non-privil~ged sections, and indeed, such a · segregation would not be supported in law. The report fits squarely within the attorney-client privilege and therefore is exempt from disclosure. ·Thank you for your consideration. " ) Very truly yours, . ~ ··· .... . . - .. . . . John Engiander General Counsel . . cc: . _ Attorney Stephen Shorey, Office of the Supervisor of Public ~ecords Matthew Stout, Boston Herald COMMONWEALTH OF MASSACHUSETTS SECRETARY OF STATE, PUBLIC RECORDS DIVISION In Re~ SPR 16/183 AFFIDAVIT OF JESSIE SAINTCYR Jessie Saintcyr, being <;iuly sworn on oath, deposes and states as follows: I. I am an attorney ~icensed to practice law in the Commonwealth of Massachusetts. 2. I am the Assistant.Secretary ofHUman Resotrrces for MassDOT and the Massachusetts Bay Transportaiion Authority t'MBTA"). 3. In my capacity of Assistant Secretary of Human Resources, I was charged with examining and assessing iss1,1es related to employee attendance and absence management at the MBTA. The evaluation and assessment of this issue involved a number of complex issues, including legal issues relating to compliance with the various state and federal laws governing absences and leaves of absences in the workplace, as well as legal ob.ligations and analysi~ of the MBTA's obligations under its union contracts. 4. On September 2, 2015, I, on behalf of the MBTA, entered in~o a Legal Services Agreement with the law firm of Morgan, Brown and Joy, LLP ("MB.F). Among other ·services, MBJ was contracted to provide the MBTA with a review of the MBTA' s:leave practices-and in order to provide legal advice ·to address inconsistencies and loopholes and to ensure compliance with state and federal Jaw. The confidential legal report was to be delivered in October 2015. · 5. The legal review memoiand_LlITJ. (the .._Report") wzj.s delivered to me on October 13, 2015. 6. The only individuals who have had access to the Report, besides employees!lawyers of MBJ, are other management representatives of the MBTA who were part of the team involved in commissioning the R~port, and/or were charged with assessing and implementing the legal advice provided. · . . 7. I sought the Report on behalf of the MBTA for the purposes of obtaining confidential legal advice from MBJ about the MBTA's employee absence and leave mam1gernent processes, including suggestions on.how to make lawful changes to the current processes. and 8. The information opinions contained in th.e Report provide specific legal advice to the META regarding-its employee ab~ence «ind leave management. 9. The Report consists of communications concerning the MBTA's leave and absence management pro~ess'es and counsel's legal opinions and advice as to _these processes. 10. The Report is a confidential communicqtion between the MBTA and MBJ. It was clearly and plainly marked as an Attorney Client Privileged Communication and was and hasbeen maintained as such. . · . . f-rSigned under the pains and penalties of perjury this 2 6 day of April, 20 16. COMMONWEALTH OF MASSACHUSETTS SECRETARY OF STATE, PUBLIC RECORDS DIVISION . In Re: SPR 16/183 AFFIDAVIT OF JACLYN L. KUGELL Jaclyn L. Kuge14 being duly sworn on oath, ?-eposes. and states as follows: 1. I am an attorney licensed to practice law in the Commonwealth of Massachusetts. 2. I am a partner in the law firm of Morgan, Brown & Joy, LLP ("MBJH). 3. On or about September 2, 2015, MBJ, and .the Massachusetts Bay Transportation Authority (''META") entered into a Legal Services Agreement ("~the Agreement"). Among the services MBJ contracted to provide the MBTA was-an "audit and report on recommend (sic) changes to the MBTA's current conditions, including current and draft policies. practice~~ and contracts governing and/or affecting employee absences·and leaves, to ensure compliance with state and federal law..." The legal audit and report was to be delivered in Octol:ier, 2015. 1 · . . 4. The legal audit and report memorandum (the {'audit·and report") was delivered. to Jessie Saintcyr, Assistant Secretary of Human Resources on ?ctober 13, 2015, 5 . . To the best of my knowleqge, the only other individuals who have had access·to the audit and report besides lawyers/employees ofMBJ, are other "clienf'.representatives ofthe . :META who were part of the team involved in c6nlm.issioning the audit and report, and/or were c~ged w.ith assessing and implementing the legal advice provided. 6. The audit.and report is, and was intended to be, a communication in connection with the providing of legal advice to the MBTA. , 7. The information regarding current practices and policies were based on communications -------.v.Oh-.b-d~ocumentS.f);t:OJ.7id~~T~~J;tak-ei:J..-f~~~~ legal advice and assistance, which was intended to be confidential. 8. The :information and opinions contained in the audit and report provide specific legal advice to the MBTA regarding its employee absence and leave management. 9. The audit and report consists of communications concerning the MBTA's leave and absence management processes and counsel's rendering 0f its legal opinion and advice as 1 The initial due date for the audit and written report was no later than October 9, 2015; however, by agreement of the parties, this due date was extended to October 13, 2015. to these processes. · 10. The· audit and report is not a memorandum created by IY.IBJ for its file, but rather is the rendering of legal advic.e directly to its client~ the MBTA. 11. The audit and repo1t iB a confidential communication between the MBTA and MBJ undertaken for the purposes of obtain ing legal advice aud assisi.ance. 'It was clearly and plainly marked as an Attorney Client Privileged Communication and} to the best of my knowledge) was and has been maintained as such. r-t\A. Signed under the pains ancl penalties of perjury this lo-day of April, 2016. 2 THE CO:MJ\,10NWEALTH OF MASSACHUSETTS OFFICE OF THE 11\TTOP~IBY GE1IBRAL MARrnA Co.AICiEY ArroRNEY" GENER.AL ONE AsH:BURTON PLACE ' BOSTON, MASSAC:ffiJSETTS 02108 (617) 727-2200 www.mass.gov/ago Advisory on July 2007 SJC Ruling Regarding Confidentiai .Communications Between Public Entities and tbeir Attorneys Confidential communicatioDB between public entities (such as agencies, cities, and toWDB) and their attorneys undertaken for the purpose of seeking or furnishing legal advice are privileged.. In July .2007; the Supreme Judicial Court, recognizing that governmental officials must.be able to obtain quality legal advice essential to the faithful discharge of their duties, that public entities should not be unfairly disadvantaged vis-avis private parties with whom they transact busine.ss, and that the public has a strong interest in the fair and effective administration of justice, unequivocally held that'the attorney-client p:i;ivilege applies to public entities. Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007). The Court also held that the legal advice provided·to public entities by their attorneys is privileged, even where the advice is contained in a docwnent or record and the public entity is subject to the public records law (M.G.L. c. 66, § IO, apd M.G.L. c. 4, § 7, cl. 26). In essence, the Court held that public entities are protected by the attorney-client privilege, even if the protected communications are contained in a public record. The attorney-client privilege protects confidential communications. 1 To be privileged, (1) the communication must have been made in conne~tion with the provision oflegai advice: to the public client; (2) the communicatidn must have been made iJ?. confidence; and (3) the privilege must not have been waived. Matter ofReorganization ofElec. Mut. Liability Ins. Co., Ltd (Bermuda), 425 Mass. 419, 4f.l (1997). As to the first element, only communications between the public entity and its attorney made with a view ~~~-~~-to:w.arili~obtaining-or....pr-0:v.iiliti.g~leg...al...ad¥ice-ar..e-pro:tec;.ted~Th..e-pi:i-v.il.e~9gs-HG~-@fla-~~_,__,_­ beyond confidential communicatio:Ils. So, for example, suppose town counsel writes a letter to the zoning board in which she says: "In my opinion, ·the board·should allow reconstruction of a singfo-family residence on the property at issue. However, the board · should advise the property owner that he needs a special permit if he intends the reconstructed residence to exceed the footprint and square footage of the original residence." The opinion contained in the letter is a protected attorney-client ~ommunication because town counsel is providing specific legal advice in a letter 1 The scope of the attorney-client privilege cannot be completely summarized iii a short advisory like this one. A comprehensive resource is The Attorney~Client Privilege and the Work-Product Doctrine, Fifth Edition. authored by Edna Epstein and published by the ABA, Section of Litigation. directed to the client board. Suppose, however, that the tciwn counsel then sends an invoice for her legal services to the zoning board stating, "Fee for professional services: $1,000." That invoice would not be a protected attorney-client communication because the invoice does not reveal the motive of the client in seeking representation, litigation strategy, OT the specific nature of the services provided, such as researching particular areas of the law. See, e.g., Chawlhryv. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999); Clarke v. A.merican Commerce National Bank, 974 F.2d 127, 129 (9th Cir. 1992); lviaxima Corp. v. 6933 Arlington Development Limited Partnership, 641A.2d977, 984 (M:d. 994); Beavers v. Hobbs, 176 F .RD. 562, 564-65 (S.D. Iowa 1997); Burton v. R.J: Reynolds Tobacco, 170 F.R.D. 481, 484 (D'.Kan.1997). 2 There is a distinction between attorney-client communic_;ations and attorney work product. A letter from toWn counsel to the public entity described above ("In my opinion, the board should allow reconstnl.ction of a single-family residence on the property at issue ... ")is an attorney-client communication; 'a memorandum to the file that was prepared by the town counsel in connection with litigation or anticipated litigation, assembling information about special pemrits, for example, or outlining conclusions, opinions, and legal theories, is work product. With attorney-client privilege, the principal focus is on encouraging the client and the attorney to communicate with each other freely. With attorney work product, the focus is on encouraging careful and . thorough preparation by the attorney in connection with l.itigation. · in Suffolk Construction, the Court distinguished between the privilege given to an "attorney-client communication" and the protection afforded attorney ''work product." The attorney-client communication is practically inviolable; on the other hand, the broad attorney work prodµct privilege has been abrogated by the public record.S law in favor of · the time-limited "deliberative process pnvilege." Svffolk Construction, 449 Mass. at 454, citing General Electric Co. v. Department ofEn:vironmental Protection, 429 Mass. 798 (1999). Attorney work product is generally protected from disclosure during litigation, but, unless it may be withheld from disclosure under one of the public records law exemptions, is subject to disclosure under the public records law once the litigation is resolved. Therefore, public entities and their attorneys should carefully consider how legal opinions are made and communicated. For example, although not dispositive, a public entity or: attorney shC?uld clearly label a letter or an e-mail between the attorney and.public entity ~oncerning the public entity's search for legal advice or the attorney's · ·giving oflegal advice, "confidential attorney-client communication" if that is what is intended. · As to the second and third elements - - confidentiality and absence of waiver -- the protection of the attorney-client privilege may be lost if the parties do not maintam the confidentiality of the communication. The privilege may be lost, for example, in the following circumstances: (1) the commurucation is made to or in the presence of a third · 2 To be privileged, the attorney-client communication must he intended tci be coniidential. In the above example, if one of the zoning boa,rd members writes a letter to the resident asking for more information and cc's the town counsel, the letter does not become' an attorney-client communication.. The reverse is also true: if the town counsel writes to the resident seeing addition.al information and cc's the zoning hoard, the letter does not become an attorney-client communication. party who is not a necessary agent of the attorney or client or, even if an agent, a party whose presence is not necessary to the rendering or understanding of the advice; (2) the communication was intended to be made privately but in the circumstances ill which it was made, the client reasonably understood that it could be .overheard; or {3) the communication was made privately, but the client understood that the information communicated would be conveyed to others, for example, where town counsel told the town manager that in her opinion, the zoning boaid sho.u ld issue a special permit and that would be the position she would be taking at the arJ.tiu.a.l Lown meeting. Therefore, public entities and their attorneys should consider carefully who is present when the . communication is made, whom the communication is between (who the "client" is), where the communication is made, and whether the communication is intended to be shared. An indiscreet communication, the presence of a thlrd party not necessary to the rendering of the legal advice, or an indiscriminate "cc" may result in the privilege being lost. When faced with .a public records request, public entities sho{lid carefully differentiate betWeen documents that must be disclosed and documents that contain privileged attorney-client co1Tl111unications that may be withheld. The public entity should then respond to the public records request, indicating that documents containing attomeyclient communications were withheld. If the public entity's withholding of certain documents is challenged, the public entity may be required to prepare an itemized and indexed document log in which it sets out detailed}ustifi.cations for its.claim of privilege. The Court has expressed its cori.£dence that public entities and their counsel will be able to make appropriate distinctions. We add our own note of caution that public entities should guard against indiscreet use or over-use of the attorney-client privilege. Public entities should begin with the presumption that all documents are subject to disclosure, and be circumspect about their characterization of a document or part of a document as privileged. Misuse or overuse of the privilege will defeat the purpose of the public records law and could lead to litigation that might, in the end, erode the ·s cope of the . attorney client privilege in the government context. ·· . · For questions or additional information regarding this Advisory, please contact the General Counsel's Office, bffi.ce of the Attorney General, One Ashburton Place, Boston, MA 02108, (617) 727-2200. --~ . ______ ________ _ ..,......,.. - - - · -----·- - · - ·------ - ------·~- - ·~-·-----·--· The Commonwealth of Massachusetts W.illiam Francis Galvin, Secretary of the Commonwealth Public Records Division · Shawn. A William.s Supervisor ofRecords March 24, 2016 SPR16/183 Mr. John Englander, Esq. General Counsel MassDOT and MBTA 10 Park Plaza, .Suite 3910 Boston, MA 02116 Dear Attorney Englander: · 1 have received the petition of Matthew Stout of the Boston Herald appealing the respon.Se of Massachusetts Bay Tr~portation Authority (META) to a request for public records. G. L. c. 66 § 1O(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Stout requf1sted records related to. a leave management consultant's recommendations to the lv.IBTA. In its initial responses, the MBTA provided a snmmary of the recommendations but denied access to ''the full · report" under the attorney-client privilege. Mr. Stout appealed the vrithholdllig of the, report. Previous appeal This request was the subject of a previous appeal. See SPR16/054 Determination of the Supervisor of Rec,ords (February 18, 2016). In my February 18 determination, I found the MBTA ffilled to meet its burden of explaining with speci£.city how the responsive report, in its entirety, is exempt from disclosure. pursliant to the attorney-client privilege. As a result, I ordered. the 1Y1B TA to provide J:v.fr. Stout with the responsive report or a revised response to the request, provided in a manner consistent with this order, the Public Records Law and its ----Regu}atiuns: The :MB TA provided a response to the February 18 order in which it continues to withhold the entirety of the report under the attomey..:client privilege .and Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Mr. Stout informed this office that he objects to this response and this appeal was opened as a result. In camera review In order to facilitate my review of the matter, I ordered the lv.l.BTA to provide this office with an unredacted copy of the responsive report for an in camera review. The l\1BTA promptly OneAshburtonPlace, Room·1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.sta1:e.ma. us/pre Mr. John Englander, Esq. Page2 March 24, 2016 SPR16/183 complied vvith this order and I thank the MJ3TA for its cooperation. My authority to require the submission of documents for an in camera inspection emanates from the Code of lvfassachusetts Regulatiom. 950 C.M.R. 32.08(6); see also G.L.c. 66, § 1. Common law attorney-clien:f privilege · The Supreme Judicial Court confirmed the existep.ce of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Sup~rvisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull · Municipal LightIDg Plant v. Massachusetts Municipal -wholesale Electric Co., 414 Mass. 609 (1993). 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 relatiorubip, 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 bis or her capacity as such; (2) that the communicati<;ms were made in con£dence; and (3) that the privilege as to these co.mmunications has not been waiyed. See Suffollc, 449 Mass. at 450 n.9; 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). The. attorney-client privilege pertains only to disclosure of confidential client communications; it does not apply to mere facts. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). Ill its response, the Iy.IBTA indicates it entered into a legal services agreement with the faw fir.in ofMorgari, Brown & Joy, LLP to "audit and report on and recommend changes" to the MBTA's employee absence and1eave policies. Further, you ·state the :furn "provided a c~mfidential memorandum containing its :findillgs and legal advice regarding the L~ave Mana,gement review to the lv.IBTA." You claim the con£denti3lity of this report has been maintained and that the privilege· has not been waived. · ----------------~~--~ ---- --- - . -- ··- · - - -· - ·- - ---- - -- "- · ---~----· Upon ID)) in camera review of the responsive report, I find the MB TA has not established how the report, in its entirety, constitutes privileged communications received from a client during the course of bis search for legal advice fr~m bis attomey. As a result, I find the lY!J3 'TA has not met its burden to withhold the entirety of the report under the attorney-client privilege. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (l979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). ------ lv.rr. John Englander, Esq. Page3 March 24, 2016 SPR16/183 . Exemption (d) The MB TA also claims that the report may be withheld· pursuant to Exemption (d) of the Public Records Law. Exemption (d), also known as the deliberative process exemption, allows for withholdir~.g of records that are: · 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 recmnmenda:tions on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Factual rep_orts 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 EnVironmental Protection Agency v. Mmk, 410 U .S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.) To support its Exemption (d) claim the MBTA cites DaRosa v. Cit)r 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). DaR.osa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R.· Civ. J?. 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 interwove;o. with opinions or analysis leading to opinions." Id. -- -- ---·-----------Tue··1v.ffiTA has not claimed that fue·responsive report was prepared in anticipation of litigation or trial. Further, the MBTA has not shown how any factual non-deliberative informati.on may be withheld. Therefore, I find the MBTA's response fails to show how it may withhold the entire report under DaRosa and Exemption (d). · Conclusion For the reasons discussed above? the META is hereby ordered, within ten (10) days, to provide ·11r. Stout with a revised response to ·t he request, provided in c;i, manner consistent with this order, the Public Records Law and its Regulations. If the MBTA maintains that any portion of the r~sponsive records are exempt from disclosure it must, within ten (10) days provide to MI. Jv.fr. J obn Englander, Esq. Page4 March 24, 2016 SPR16/183 Stout a ·written explanation, with specificity, how a particular exemption applies to each n~cord . · Tu m~e1 fue specificity requirement a custodian IIiUSt nor only cite ati exemption, bu.L must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this 'response to this C?ffice at pre@sec.state.maus. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66; § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for P'll;blic records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you ust provide the responsive records. cc: Mr. Matthew Stout L ~ Massachusetts ,Bay Employee Absences: Plan of Action \!) Transp·ortatlon Authority tWdSiftPMi&ii'WE*iiBfF•iDH!Bni\-WW&!WtMUM!tf#dJffifi"'iM§Ni@@@9HiL@YQ!@ffiS§g;p;;µ:iWi't!i\8ffV§liif@M!MEME••MN'0 fWM ;;e 'M*QfiS'b*&&@IS@@ lmplementation status of Leave Management Consultant (LM:C) recommendations to address excessive employee absences and to ensure .legal compliance . ./ Training of 900+ employees in the Effective Management of Employee Absences is _in prog_ress · ../ Proc~ss mapping st arted for implementation on or before January 1, 2016 . . V Planni~g begun for the new leave administration processes HR will implement in 2016. Leaves for "sick" purposes will· run concurrently · , ' . ./ HR is preparing to implement additional. recommendations~ including procuring a Third Party Administrator (TPA) to administer leaves ~rnd to operate a call center 21 Note: HR fnthe process of auditing FMLA certifications to ensure compliance going forward. irnassDOT M.n:u.J~c:hus.oru . . 1 Draft for Discussion & Polley Purposes Only J:lit::pn.-cmcnt ot Tr-:.i.n.:i:po't'l:l'lilon ' . Appendix: 21 IV!C Recommendations for HR (.;;\ Massachusetts Bay \!) Tr~nsportation Authority ·PAW&Y • 4·•4•f#WS1 1. Require employees to adhere to MBTA call-in procedures 2. Use a "call-taker" script when taking calls from employees for unscheduled absences to: a) Gather more accurate information about the basis for the unscheduled employee absence (sick, FMLA-self, FMLA-family), b) Improve the accuracy of coding absences, c) Ensure compliance with leave laws and CBA terms 3. Code unscheduled absences correctly, with multiple codes to ensure leaves run concurrently 4. Identify Pattern Absenteeism and FMLA absences in excess of approved frequency and duration \-,--....:.·...;.·'""·-'r-----+-5_._A_p_ply new Attendance Policy · Proc~5S(~bw)' ...· :··:.\;.·.~ ,':· ;»J:;,;:: .: :. · ,. "·' ·: . . ... : . . . ~,4:~'.: .:.":>.:: ·."'.: ._ :.: . ·' · :. 1. 2. 3. 4. Run leaves concurrently, where appropriate Recertify FMLA, where appropriate Initiate FMLA process where a possible "serious health condition" i? evident from contractual sick pay medical documentation Commence ADA process promptly 1. Move from a minimally-resourced FMLA administrative process to a fully-resourced, legally compliant, fair, and consistent-FMLA process 2. Use DOI_ Forms for FMLA Administration 3. Implement FMLA tracking system · · 4. Delay or deny FMLA designations where employee, despite notice, fails to timely provide complete medical certification 5. Fully review medical certifications for validity, and seek second opinions, where appropriate 6. Ensure chiropractic certifications meet FMLA standards 7. Require FMLA recertification every 6 months, for Pattern Absenteeism, and for use beyond approved frequency and duration 8. Require employees to use accrued sick, vacation, and personal day pay when taking FMLA or other statutory leave under new Attendance Policy 9. Shift from the current, fixed year to .a true "rolling year," after 60 day notice period, under revised FMLA policy 1. Expand the purposes for whic,h contractual sick time may be used to match up with EST purposes, to care for an injury, illness, or medical condition of the emplcyee and his or her child, spouse, parent, \Jr parent of spouse 2. Pay contractual sick time for all "sick" absences before requiring documentation for: Excused and unexcused absences and for the employee or for his or her child, spouse, parent, or parent of spouse · 3 . Issue a Request for Quotations (RFQ) for a Third Party Administrator (TPA) to operate a call center and perform case management of unscheduled employee absences 2 ., 1 '.- Shorex, Stephen (SEC) -- - 1 From: Sent; To: Subject: Att?tchments: 6 ~reen, Marie (DOT) Monday, March 21, 2016 7:12 PM stephen.shorey@sec.state.ma.us SPR 16/054 - In Camera Inspection Attorney-Client Privileged Leave Memorandum 10.13.15.pdf · Attorney Shorey, Pursuant to your request a:nd in connection with the above-referenced public records request appeal to the Supervisor of Public Records; the Massachusetts Bay Transportation Authorlty ("MBTA") is providing a copy of the legal memorandum prepared by the law firm of Morgan, Brown & Joy, LLP. This memorandum is submitted for the purpose of an in-camera .inspection by the Supervisor of Public Records. The MB TA stronglJ n:iailltains that this memorandum is exempt from disclosure ~ an attom·ey-client privileged communication in wbich l~gal advice has been provided.to the lv1BTA, as more fully set forth in a letter to y-0u from John Englander dated March, 2016. The MBTA understands that pursuant to 950 Cl.Y.1R. 32.08 and M.G.L..c. 66 s. 1O(a), the memorandum will not be retained by your office and does not fall within the definition of public records by this submission. The MBTA does not waive attomey-qlient privilege by proviQ.ing this memorandum for in-camera inspecti9n and expressly reserves all applicable privileges. Please contact me if you need any additional information or if you have any questions concerning this matter. Thank you, Marie Marie Breen . First Assistant General Counsel MassDOT and META Ten Park Plaza Boston,MA.OZ116 Office: 857-368-8779 Cell: 617-3 56-4988 Marie.Breen@dot.state.ma.us The Comm.onwealth of Massachusetts William FraiJ.cis Galviil., Secretary of the Commonwealth Public Records Division Shawn A Wtllia_rns Supervisor·ofRecordr March 16, 2016 SPR16/183 :Mr. Matthew Stout The Boston Herald 70 Fargo Street Boston, MA 02210 Dear Mr. Stout: I have received your letter appealing the response of Massachusetts Bay Transportation Authority to your request for records. This response was provided as a result of a previous order from this office_. · See SPRl 6/054 D~termination of the Supervisor of Records .(February 18, 2016). · I have directed.a member of my staff, .Attorney Stephen Shorey, to review .this matter. Upon completion of the review, I will advise you _in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please·notify this office imr?-e9-iately. _ Any 'further correspondence concerning the specific appeal should refer to the SPR case number·listed under the date of this letter. ·· ;;:,Di~ Shawn A. Williams Supervisor of Records cc:. Mr. Joe Pes~turo OneAshburron Place, R.ooni 1719, Boston, Mass_achusettS 0~108 · (61 7) 727-2832 ·Fax (61 7) 727-591 4 '" Mikhaeal, George (SEC) Matthew Stout Thursday, March 10, 2016 11:19 AM From: Sent: To: Subject: Attachments: SEC-DL-PREWEB Fwd: MBTA Response to Supervisor of Public Records SPR 16-054 - March 4 2016.pdf Hello, I am forwarding tills records request appeal, which was previously sent to Shawn Williams arid Patricia Rastellini on March 8·. Fee~ free to contact me with any questions (203-507-6484). Thanks, Matt ----------Forwarded message---------From: Matthew Stout Date: Tue, Mar 8, 2016 .at 2·:06 PM Subject: Fwd: Iv1J3 TA Regponse to Supervisor of Public Records To: "shawn.williams" , "Rastellini, Patricia (SEC)" Hi Patricia, . Hope all is well. I ·am writing to submit an appeal of the following matter involvrng_the :META. The Secretary of State's office had issued g. ruling l!IBt month ordering the META to release a report to me that it claimed was attorney ciient privilege. On Friday -- the deadline for producing the records -- the META instead released a further argument of why the records shouldn't be released. I am writing to again challenge the reasoning that th report classifies as. an attorney-client privileged document · 1 Please let me know if you need any other documentation from me. The T's response from Friday, March .4 is attachedto thi$ email. I available by phone (203-?07-6484) or email. am Thanks, Matt ----------Forwarded message-:-------From: PesatUro, Joe Date: Fri, Mar 4, 2016 at 5:03 PM , Subject: .:MB TA Response to Supervisor of Public Records To: Matthew Stout Hi 1V[att - '' The attached letter, sent today, explains - in more detail - th~ MBTA 's basis for vvitbholcling the m~morandun This email/electronic message, .including any attached files, _is being sent by the l\.1BTA. It is solely intended fc the recipient(s) and may contain :information that is proprietary, confidential, legally privileged, and/or exempt from disclosure pursuant to state and federal iaw. If you have received this message in error or are not the intended recipient(s), please notify the sender immediately by reply, and delete all copies of this · email/electronic message and any attached files from yo:ur computer. If you are the intended recipient(s), you may use the :information contained 0- this email/electronic message and any attached files only as authorized b: the MBTA.. Any unauthorized use, dissemination, or disclosure of this emai1/electronic message and/or its attached files is strictly prohibited. · 1V1att Stout Boston Herald State Honse Tepo1ter matthew.stout@hostonherald.com C: (203) 507-6484 Matt Stout Boston Herald State House reporter matthew.stout@bostonherald.com C: (203) 507-6484 2 . '' Charles D. B~ker. Governor Kaiyn £. Polito. Llemen11nt Govemor Srephanie Pollack, MassDOT Secretary & CEO ~rank DePaola, General Manager Brian Sharrsleeve, Chief Administrator Ma$$acht1setts Department of Transportation March, 2016 Shawn A. Williams Supervisor of Public Records Office of the Secretary of the Commonwealth One Ashburton Place, Room 1719 ' Boston, MA 02108. Re: SPR 16/054 Dear Mr. Williams: · This letter is in respon.s e to your letter dated February 18, 2016 and tpe appeal of the BB-ston Herald to the Massachusetts Bay Transportation. Authority's (MBTA) position regar.ding the release of the memorandum prepared by the law firm of Morgan, Brown & Joy; LLP, pursuant to.a_legal services agreement The basis for the MBTA:s position in wi~h_?.lding the memorandum is the common law attorney-client pr_ i vilege and work-. product privilege. As requested in your letter, this response provides further specificity and explanation oftheMBTA's position. On September 2, 2015 the MBTA entered into a leg.al services agreement with.the law firm .of Morgan, Brown & Joy, LLP (MBJ) following a Request for Responses fw .L egal · Services for Leave Management. The legal services agreement set forth the legal services · scope to "audit and report on and recommend ·changes to the MBTA's current conditions, including current and draft policies, practices, a.pd contracts governing and/or affectin_g. · em.ployee absences and leaves, to ensure compliance with state and federal law · (emphasis added) and take measures to remedy conflicts, inconsistencies, and weaknesses or loopholes." In January 2016, .rvt:BJ provided a confidential memoranc;l.um containing its findings and legal advice regarding the Leave Management review to the NIBTA. Since that date the confidentiality of the communication has been maintained throughout and the document. has only been shared with necessary agents of the attqrney and the client seeking advice. A one-page recommendations summary and implementation plan (copies attached) was prepared and presented to the Fiscal.Mana~ement Control Board (F.MCB) in an open meeting of the FMCB. These two documents have been released. The privileged f. . . substance of the attorney memorandum has not been waived at any time and has at all times remained c_onfidential. The memorandum itself has not been disclosed to ariy Massachusetts Bay Transportation Authori!) Ten Park Plaza, Suite 39 lO, Boston, MA 021 Tc www.mbta.corr outside third-parties or to internal parties beyond the limited and neces~ary agents of the MBTA as client. The shared expectation at all relevant times of MBJ and the META. has been that ail of their communications, intluding the memorandum, would not be divulged . ....... - - . ..- --: connaen~ru '~i..: · 1' • .. • . · t · . •. • colilllturucanon8 ueEween gove111merri:a.J. emmes ana. u1eu- egili counse.1 1 undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege and work product privilege. See DaRosa v. · City ofNew Bedford, 471Mass446 (SJC May 15, 2015);Suffolk Construction Co. v. ·.·Division of Capital AssetManagement, 449 Mass. 444 (2007). ·_In additio~, the memorandum is protected from disclosure pursuant to Massachusetts General Laws ch. 4, sec. 7, clause 26 (d), the deliberative process exemptjon. Exemption (d) permits the withholding of records developed during a policy dev~Iopment procedure and is intended to avoid th.e premature release of materials that could interfere with the deliberative process if disclosed. Therefore, its application applies to recommendations and discussions on legal and policy matters found wfrhin an ongoing deliberative process. Babets v. Secretary of the Exe_c utive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Exemption (d) exempts from disclosure documents, such as the document requested, that qualify for work product protection. DaRosa. · . from While "fact" work product, ai;; opposed to "opinion" work product, is not protected disclosure under exemption (d), it is if it is not a reasonably completed study or report or, if ii is reasonably completed, where the subject document is intenvove.n with legal opinions or analysis leading to opinions (emphasis added). D.aR?sa. The__subject document is a reasonably completed report that is interwoven with f this appeal file to Susan Krupanski, Esq.; Assistant General Counsel at the MB T~: Conclusion For the reasons discussed above, the :rvIBTA is hereby ordered, within ten (10) days, to provide Mr. Stout with the responsive report or a revised response to the request, provided in a manner c;onsistent with this order, the Public Records Law and its Regulations. If the MBTA · maintains that any portion of the responsive records are exempt from disclosure it must, within ten, (10) days provide to MI. Stout a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withhdd or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this ofµce at pre@.sec.state.ma.us. . . Mr. Joe Pesaturo Page3 February 18, 2016 SPR16/054 I;fthere are any-fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dol1ars ($10.00); custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. · ' T_o assist the lv.IBTA in responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. Ibis docUm.ent is available on the Internet, free of charge, athttp://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are.. available during regular business hour's to answer general questions regarding the Public Records Law. · · . In·addition,-members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone numbe~ provided in this determination for further · rmation. cc: Mr. Matthew Stout Ms. Susan Krupanski, Esq. Shorey, Stephen (SEC) H From: Sent: To: Subject: Attachments: Shorey, Stephen (SEC) Tuesday, February 02, 2016 2:10 PM Krupanski, Susan (MBTA) SPR16/054 - Stout Appeal 16-054 Stout Appeal.pdf .Hi Susan, Per our conversation, attached please find the file for Matthew Stout's appe;:il (SPR16/054). It appears Mr. Stout made his request on December 22, 2015 and Mr. P·esaturo responded on December 23, 2015 . copy me on any supplemental response the MBTA provides to Mr. Stout. Please . . Feel free to let me know if you have any questions. Best, Stephen Stephen W. Shorey · Staff Attorney Office of the Secretary of the Commonwealth Public Records Division One Ashburton Place, Room 1719 Boston, MA 02108 Ph: (617) 727-2832 Fax: (617) 727-5914 1 The Commonwealth. of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Sh.awn A. Williams Supervisor ofRecords January 22, 2016 SPR16/054 Mr. Matthe\V Stout The Boston Herald 70 Fargo Street Boston, MA 02210 Dear Mr. Stout: I have received your letter appealing the response of the Massachusetts Bay Transportation Auth01ity to your request for records. I have directed a member of my staff, Attorney Stephen Shorey, to review this matter. Upop. completion of the review, I will advise you in wnting of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office lmm.ediately. Any further correspondence concerning this specific appeal should refer to the SPR case number listed under the date of this letter. V~s,kJL~ Shawn A Williams Supervisor of Records . cc: Mr. Joe Pesaturo OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre RastelliniT Patricia (SEC) !NF · :c 5 ... :z lL- - ;+ :::c::a:W::JS::? Matthew Stout Monday, January 18, 2016 11:44 AM Williams, Shawn (SEC) Rastellini, Patricia (SEC) Boston Herald appeal From: Sent: To: Cc: Subject: _i_-l_i = x s ac: • Shawn, \ Hope everything is going well. I am writing to submit an appeal to you for a records request denial I received or Dec. 23 from the :MBTA. I requested a report prepared by a leave management consultant (Morgan, Brown and Joy) examining personnel procedures, overtime practices, etc. I was denied on the basis that it felt under attorney-client privilege. i am challengint · that such an exemption could apply to this report, and am asking that it be released. · I can be reached on my cell phone at 203-507-6484. rve included below the relative emails I exchanged with Joe Pesaturo at the MBTA, · including my initial request, his responses and the argument the T posed in denying the request. I appreciate the help and look forward to your response. Thanks, Matt Emails: (dated Dec. 23) Pesaturo, Joe to me, Amanda @} Hi Matt- The full re port is attorne y-client privileged, and will not be re lease d at this time. But attach ed to t his e m ai l is a very good summary of the recommendations. . · From: Skahan, Amanda (DOT) [mailto:Amanda.Skahan@dot.state.ma.us] Sent: Wednesday, December 23, 2015 11:48 AM · 1 Hope everything is going well. I left you a voicemail but wanted to follow up with an email. I'm reaching out on two fronts: 1) I am still hoping to get a copy of the full recommendations the leave management consultant produced for the T as well as any report that the consultant produced regarding their findings of absenteeism, FMLA use, etc. Matt Stout Boston Herald State House reporter rnatthew.stout@bostonherald.com C: (203) 507-6484 The report is attorney client privileged.· It was prepared by legal counsel at the T's request, seeking legal advice. By the· · way, you are incorrect about whether work product is also a basis for withholding. From: Matthew Stout [mailto:matthew.stout@bostonherald.com] Sent: Wednesday, December 23, 2015 .1:42 PM To: Pesaturo, Joe Subject: Re: LMC Can you explain the difference of why this classifies as a confidential communication as opposed to a work product document? Also, on my second question, Is there a criminal or civil investigatory element to this review, given it involves identifying potential abuses of a foderal act? · On Wed, Dec 23, 2015 at I :37 PM, Pesaturo, Joe wrote: I) Can you explaill why this report is.considered attorney-client privilege? Or is the T's general counsel available to expiain why? Under guidance provided by the Secretary of State, attorney-client privilege extends 2 to 11 confidential commuwcations between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attomeyclient privilege." But the Secretary of State's office makes clear that "work product documents 11 are subject to public disclosure. This report appears tq classify as work product document, given the T paid the consultant to produce the report and this is the product of that agreement. For this reason: Confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. On Wed, Dec 23, 2015 at 11:53 AM, Pesaturo, Joe wrote: Hi Matt- The full report is attorney-client privileged, and will not be released at this time. But attached to this email is a very good summary of the recommendations.. From: Skahan, Amanda (DOT) [mailt6:Amanda.Skahan@dot.state.ma.us] Sent: Wednesday, December 23, 2015 11:48 AM Hope everything is going well. I left you a voicemail but wanted to follow up with an email. I'm reaching out on two fronts: 1) I am still hoping to get a copy of the full recommendations the leave management consultant produced for the T, as well as any report that the consultant produced regarding their findings of absenteeism, FMLA use, etc. · Matt Stout Boston Herald State House reporter· matthew.stout@bostonherald.com C: (203) 507-6484 . 3 This email/electronic message, including any attached files, is being sent by the MBTA. It is solely intended for the recipient(s) and may contain information that is proprietary, con£dential, legally privileged, and/or exempt from disclosure pursuant to state and federal law. If you have received this message in error or are not the intended recipient(s), please notify the sender immediately by reply, and delete all copies of this emaiVele.c tronic message .a nd.any attached files from your computer. If you are the intended recipient(s), you may use the inforr£1ation contained in this ernail/electronj c message and eny attached files only as authorized by the MBTA. Any unauthorized use, dissemjnation, or disclosure of this email/electronic message and/or its attached files is strictly prohibited. · Matt Stout Boston Herald State House reporter matthew.stout@bostonherald.com C: (203) 507-6484 This email has been scanned by MessageLabs and contains no vinises or mCJ.lware. This email/electronic message, including any attached files, is being sent by the MBTA. It is solely intended for the recipient(s) and may contain information that is proprietary, con£dential, legally privileged, and/or exempt from disclosure pursuant to state and federal law. If you have received this message in. error or are not the intended recipient(s), please notify the sender immediately by reply, and delete all copies of this email/electronic message and any attached files from your computer. If you are the intended recipient(s), you may use the information contained in this email/electronic message and any attached files only as authorized by the MBTA. Any unauthorized use, dissemination, or disclosure of this email/electronic message and/or its attached files is strictly prohibited. 4 MC1-tt Stout Boston Herald State House reporter matthew.stout@bostonherald.com C: (203) 507-6484 . This email has been scanned by. MessageLabs and contains l;l.O viruses or malware. This email/electronic message, including any attached files, is being sent by the MBTA. It is solely intended for the recipient(s) and may contain information that is proprietary, confidential, legally privileged, and/or exempt from disclosure pursuant to state and federal law. If you have received this message in error or are not the intended recipient(s), please notify the sender immediately by reply, and delete all copies of this email/electronic message and any attached files from your computer. If you ar~the intended recipient(s), you may use the information contained in this email/electronic message and any attached files only as authorized by the MB TA. Any unauthorized \lSe, disseminatioµ, or disclosure of this email/electronic message and/or its attached files is strictly prohibited. Matt Stout Boston Herald State House reporter matthew.stout@bostonherald.com C: (203) 507-6484. 5 Rastellini, Patricia (SEC) a '&' From: Sent: To: Subjed: Matthew Stout < matthew.stout@bostor:iherald.com > Tuesday, January 19, 2016 12:27 PM Rastellini, Patricia (SEC) Re: Herald question (based off FMCB board report) Here is original. For some reason, the full time stamp but I'm hoping this is enough. It v1as addressed to Amanda :::ikahan at MassDOT, who then forward it to Joe Pesaturo at the MBTA, who then replied to me. Let me know if you· need anything else. -Matt From: Skahan, Amanda (DOT) [mailto:Amanda.Skahan@dot.state:ma.us Sent: Wednesday, December 23, 2015 p:48 AM Hope everything is going well. I left you a voicemail but wanted to follow up with an email. rm reaching out on two fronts: 1) I am still hoping to get a copy of the full recommendations the leave management consultant produced for the T, as well as any report that the consultant produced regarding their findings of absenteeism, FMLA use, etc. Matt Stout Boston Herald State House reporter matthew.stout@bostonherald.com C: (203) 507-6484 On Tue, Jan 19, 2016 at-12:23 PM~ Rastellini, Patricia (SEC) wrote: Sounds good, thanks Matt. From: Matthew Stout [mailto:matthew.stout@bostonherald.com] Sent: Tuesc;Jay, January 19, 2016 12:23 PM To: Rastellini, Patricia (SEC) Subject: Fwd: Herald question (l;>ased off FMCB board report) Hi Patricia, . 1 Here is my original request, made Dec. 22. Included in the string I sent yesterday is an email I sent on Dec. 23 following up on it, hl]t I apologize, the tline stamp appears to have been dropped off. I'll forward that original · email to you now. Thanks, Matt ---------- Forw'arded message---------From: Matthew Stout Date: Tue, Dec 22, 2015 at 2:06 PM · Subject: Herald question (based offFMCB board report) To: "Verseckes, Michael (DOT)" Cc: "Pesaturo, Joe" Hi Mike, ' Hope everything.is going well. I left you a message on your cell but wanted to follow up by email as well. In the FMCB report, it notes that the Leave Management Consultant hired by. the T to study absenteeis:i;n and the use of FMLA at the T produced a set of 21 recommendations. Do you have a copy of the·recommendations -.and any report ·t hat the consultant has produced? I am essentially looking for the underlying document the FMCB ,r eport references. . Fe~l , free to get me on my cell phone (203-507-6484). I appreciate the help. Thanks, Matt l\1att Stout Boston Herald State House reporter 2 matthew.stout@bostonherald.com C; (203) 507-6484 Matt Stout Boston Herald State House reporter matthew.stout@bostonherald.com C: (203) 507-64~4 ( Matt Stout Boston Herald Sti:ite House reporter matthew.stout@bostonheralcLcom C: (203) 507-6484 3 . Massachusetts Bay Appendix: 21 Ll\J1C Recommendations for HR @Jii#@ilWffflM&!f!MWiiauwuftl1!'411!DDM!Blli®liM@MiiMP'M*HEf*' . . Transp· ortation Authority . Mtl!lltlifiMNPMMM'1V@WNM8li§!§Wllif@WMMMWUiiiM'WMM*'tifMWW'"fi'*- Mt " "M'W*M'H 1. Requir.:, employees to adhere to MBTA call-in procedures . • 2. Use a "call-taker" script when taking calls from employees for unscheduled absences to: a) Gather more accurate information about the basis for the unscheclu1ed employee absence (sick, FMLA-self, FMLA-family), b) Improve the accuracy of coding absences, c) Ensure compliance with leave laws and CBA terms ·"·::' •· ~::.:_.:. 3. Code unscheduled absences correctly, with multiple codes to ensure leaves run concurrently '· ... : 4. Identify Pattern Absenteeism and FMLA absences in excess of approved frequency and duration 5. Apply new Attendance Policy .. ~1. I·, , .. ---~_,_ " ~-,--'~~--t-~~~~ Proc~~f(~~wr ·. ··.-.;' ·. . · •• · · · : · 1 · . · .:. " ' J ·,::.:·: :. . . . ',· Run leaves concurrently, where _appropriate Recertify FMLA, where appropriate Initiate f'MLI\ process where a possible ''serious health condition" is evident from contractual sick pay medical documentation Commence ADA process promptly · •· ' . 1. Move from a mlnimally-resourced FMLA administrative process to a fully-resourced: legally compliant, fair, and consistent FMLA process 2. Use DOL Forms for FMLA Administration .' ·~·.": '.·~ ....... : 3. lmplemant FMLA tracking system 4. Pelay or deny FMLA designations where employee, despite notice, fails to timely provide complete medical certification .. · ··.- ·· . ... 5. Fully review medical certifications for validity, and seek second opinions, where appropriate ' ' .. . ,· 6. Ensure chiropractic certifications meet FMLA standarps . . . ..... ~... ~'. " . - ' 7. Require• F:MLA recertification every 6 months, for Pattern Absenteeism, and for use beyond approved frequency and duration . . 8. Require employees to use accrued sick, vacation,. and personal day pay when taking FMLA or other statutory leave under new·Attendance Polley 9. Shift from the current, fixed year to a true "rolling year," after 60 day notice period, under revised FMLA policy ·.Pr.'oce~s (Jan) ' '. ·:·· • · 1. . 2. 3. 4. . •; .:, ':: •• ': ._:• • : ; :~ ~ • I "•• • •', .:<':~i~P~i'ii 1. Expand the purposes for which contractual sick time may be used to match up with EST purposes.1 to care for an Injury, illness, or medical. condition of the employee and his or her child, spouse, parent, or parent of spouse 2. Pay cor tractµ al sick time for all "sick" absences before requiring documentation for: Excuse'd and unexcused absences· and for the employee or for his or her . child , spouse, parent, or parent of spouse 3. Issue a Request for Quotations (RFQ) for a Third Party Administrator (TPA) to operate a call center and perform case management of unscheduled employee absences · · 2