Charles D. Baker, Governor Karyn E. Polito, Lieutenant Governor Stephanie Pollack, Secretary 6. CEO Brian Shortsleeve. Administrator and General Manager Massachusetts Department of Transportation October 28, 2016 Matthew Stout Boston Herald 70 Fargo Street Boston, MA 02210 Re: SPR 16I183 Dear Mr. Stout: The MBTA provides this letter to you in response to the September 29, 2016 letter from Assistant Attorney General Jonathan Sclarsic (the Letter") and the June 10, 2016 determination of the Supervisor of Records in the above-referenced matter (the ?Determination Letter?). The AG Letter stated that, 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." AG Letter. For the reasons that follow, the MBTA believes that the requested document, a report by the legal counsel, Morgan, Brown Joy, LLP to the MBTA for the purposes of providing legal advice, is protected in its entirety from disclosure by the attorney-client privilege. To begin, the MBJ report is a classic attorney-client communication conveying legal advice based on facts provided to counsel for that purpose and, as such, it is plainly protected by the attorney-client privilege. As the MBTA has explained in its prior responses, see Apr. 6, 2016 Letterfrom Mr. Englander to Mr. Williams; Mar. 2016 Letter from Mr. Englander to Mr. Williams, the MBTA sought legal advice from MBJ to assist it in considering legal issues relating to attendance and leave management. The legal services agreement between the MBTA and MBJ charged MBJ with auditing and reporting on employee absences and leaves ?to ensure compliance with state and federal law.? MBTA employees communicated directly with MBJ regarding current leave practices and policies at the request of the MBTA and MBJ for the purpose of obtaining legal advice and assistance. Every page of the resulting report produced by MBJ, which was intended to remain confidential between MBJ and the MBTA, contains both discussion of facts provided to MBJ by the MBTA for this specific purpose and MBJ's responsive legal advice regarding those facts. In preparing this letter, we again went through the report within that description and confirmed that the entire report fits. A confidential communication of this nature falls squarely within the SJC's interpretation of the scope of the attorney-client privilege, which privilege applies to the public records act. The SJC has acknowledged the importance of allowing public employees to discuss ?all of the relevant facts? with counsel without subjecting that communication to discovery by third parties: Massachusetts Bay Transportation Authority Ten Park Plaza. Suite 39 l0. Boston, MA 02l l6 Matthew Stout October 28, 2016 Public employees must routinely seek advice from counsel on how to meet their obligations to the public. It is in the public?s interest that they be able to do so in circumstances that encourage complete candor, without inhibitions arising from the fear that what they communicate will be disclosed to the world. If counsel, despite all diligence, are unable to gather all of the relevant facts, they will less likely serve the public interest in good government by preventing needless litigation or ensuring government officials' compliance with the law. In short, counsel will be less likely to perform adequately the functions of a lawyer. Suffolk Const. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 (2007) (emphasis added) The Supervisor of Records Determination Letter makes the point that facts, in and of themselves, are not protected by the attorney-client privilege. See Determination Letter 2 (citing Upjohn Co. v. United States, 449 U.S. 383, 395 (1981)). MBTA agrees with that principle in the abstract, but that does nothing to undercut the attorney-client privilege's application to the MBJ report. That is because the attorney-client privilege protects the communication, including any facts contained therein. See Upjohn, 449 U.S. at 396 fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ?What did you say or write to the attorney?? (internal quotation marks and citation omitted)). That the MBJ report may contain facts that, as set forth in some other document, might not be privileged is simply irrelevant to whether the attorney-client privilege attaches to the communication of those facts as they appear in the report. Com. v. Gold Medal Bakery, Inc., 464 Mass. 383, 392 (2013) (distinguishing between facts as they appear in "privileged communications? and the same facts as ?available from another [non-privileged] source"). MBTA was asked to go through the MBJ report to identify ?segregable? non-confidential facts. Although we maintain this is not required by governing law, in any event there is no segregable, non-privileged material within the report. Specifically, the two federal cases cited in the June 10, 2016 letter Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252 (D.D.C. 2004), and Mead Data Cent, Inc. v. United States Dept of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) - requiring segregation and production of ?non- confidential? information overlook important differences between Massachusetts and federal law on this subject. First, in contrast to the federal law discussed in Mead Data, Massachusetts law is quite clear that facts do not need to be ?confidential? in order to receive the protection of attorney-client privilege insofar as they appear in an attorney-client communication. The SJC has stated this unambiguously: ?[l]nformation within a communication need not itself be confidential for the communication to be deemed privileged; rather the communication must be made in confidence -- that is, with the expectation that the communication will not be divulged." Comm?r of Revenue v. Comcast Corp, 453 Mass. 293, 305 (2009), holding modified on other grounds by McCarthy v. Slade Assocs., lnc., 463 Mass. 181 (2012); Suffolk Genet. 00., 449 Mass. at 448-49 (explaining that the privilege applies to ?all Matthew Stout October 28, 20 6 confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice. . . . One obvious role served by the attorney-client privilege is to enable clients to make full disclosure to legal counsel of all relevant facts, no matter how embarrassing or damaging these facts might be, so that counsel may render fully informed legal added)). In explaining this, the SJC explicitly disagreed with the federal-law position in Mead and Judicial Watch. See Comcast Corp., 453 Mass. at 305 commissioner's argument appears to be based on an incorrect assertion that the privilege applies only where the underlying client information that is the subject of the communication is confidential in the sense that it is not public knowledge"). Accordingly, under governing Massachusetts law, even non-confidential information in the MBJ report is privileged insofar as it appears within that report. Second, and in contrast to the federal FOIA law discussed in Judicial Watch, there is no "segregability" requirement under Massachusetts law. Compare Judicial Watch, 297 F. Supp. 2d at 257 (citing 5 U.S.C. 552(b)) with 49 Mass. Prac., Discovery 4:3 (?If the privilege applies to a communication, it applies to the whole communication. The holder of the privilege is not required to disclose ?purely factual? portions of a communication covered by the privilege"). Even if a statutory segregability requirement applied, there is nothing to segregate here for the reasons given above, under Massachusetts law any non-confidential factual information in the MBJ report is subject to the attorney-client privilege. Judicial Watch is further distinguishable because the party invoking the privilege in that case failed to demonstrate that the documents in question contained any legal advice or were intended to remain confidential. See 297 F.Supp. at 267-68. That is not the situation with the MBJ report, as demonstrated through the MBTA affidavits. To summarize, because the MBJ report was made in connection with the provision of legal advice, in confidence, and without waiver, and every element of the report including any non-confidential factual information is subject to the attorney-client privilege, there is no non-privileged portion of the report to segregate and produce. Very truly yours, hn England eneral Counsel, and MBTA cc: Shawn Williams, Supervisor of Public Flecords Jonathan Sclarsic, Assistant Attorney General