THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02! 08 MAURA HEALEY TEL: (6L7)?27-22I ATTORNEY GENERAL www.mass.gov/ago September 29, 2016 John Englander, General Counsel MassDOT and MBTA 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Englander: The Attorney General received a letter on June 30, 2016 from the Supervisor of Records requesting her to enforce an order directed to the Massachusetts Bay Transportation Authority (MBTA) in accordance with G.L, c. 66, ยง 10(b). This matter arises from a request by Matthew Stout of the Boston Herald for records related to a leave management consultant's recommendations to the MBTA. At issue specifically is a responsive report created for the MBTA by the law firm of Morgan, Brown & Joy, LLP. The Supervisor's letter references a June 10, 2016 letter from the Supervisor to the MBTA, SPR 16/183, in which the Supervisor concluded that the MBTA had "failed to establish how the responsive report in its entirety falls within the common law attorney/client privilege." The Supervisor ordered the MBTA to "provide Mr. Stout a revised response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations and applicable case law." SPR 16/183. Pursuant to our statutory public-records enforcement authority, I am writing to request that the MBTA comply with the Supervisor's June 10, 2016 order to provide a revised response to Mr, Stout. Massachusetts General Laws chapter 66, section 10(b) provides that, "[u]pon the determination by the supervisor of records that the record is public, he shall order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order, the supervisor of records may notify the attorney general or the appropriate district attorney thereof who may take whatever measures [she] deems necessary to insure compliance with the provisions of this section." As the MBTA has not yet complied with the Supervisor's order of June 10, this letter is intended to require the MBTA's compliance with the Public Records Law. The MBTA should respond to the Supervisor's order by providing Mr. Stout with a "revised response to the request.. .consistent with [the Supervisor's] order." The MBTA may accomplish this by providing Mr, Stout a copy of the responsive report, or any portion of the responsive report that may be segregable because it is not subject to the attorney/client privilege. If the MBTA contends that the responsive document is subject to the attorney/client privilege in its entirety, then the MBTA should provide Mr. Stout with a new letter that explains how the attorney/client privilege applies under the Public Records Law to protect the entire responsive document from disclosure. We recognize that the MBTA has twice responded to Mr, Stout's request and detailed in its responses how the attorney/client privilege applies to the responsive document. We hope that the MBTA's third response will address the issues raised in the Supervisor's order. If the MBTA takes these steps promptly, it will have complied with the Supervisor's order, and no further action will be required by this office. However, if the MBTA fails to follow the steps outlined herein, this office will consider additional action to enforce compliance. Thank you for your prompt attention to this matter, and please do not hesitate to call me if I may be of any assistance in facilitating the MBTA's response to the Supervisor's order. Sincerely, Jonathan Sclarsic Assistant Attorney General Director, Division of Open Government cc; Shawn Williams, Supervisor of Records Matthew Stout, Boston Herald