THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 TEL; (617) 727-2200 MAURA HEALEY www.mass.gov/ago ATTORNEY GENERAL December 2, 2016 Shawn A. Williams, Esq. Supervisor of Records Office of the Secretary of the Commonwealth Public Records Division One Ashburton Place Room 1719 Boston, MA 02108 RE: SPR16/183 Dear Supervisor Williams, The Attorney General received your November 2, 2016 letter in which you conclude that the Massachusetts Bay Transit Authority ("MBTA") has failed to comply with your June 10, 2016 order to produce a record in response to a request by Matthew Stout of the Boston Herald. In your letter, you request that the Attorney General further review this matter and take necessary measures to ensure that the MBTA provides Mr. Stout with any non-exempt, segregable portion of the responsive record. We have undertaken that review, and conclude that the MBTA may continue to withhold the record in its entirety because there appear to be no non-exempt, segregable portions of the responsive record. The record as a whole is not a public record in that it appears, in its entirety, to be protected by the common law attorney/client privilege. Mr. Stout requested from the MBTA a copy of a report (the "Report") related to employee attendance and leave management generated by its outside legal counsel, Morgan, Brown & Joy, LLP ("MBJ"). The MBTA declined to produce the Report, citing the attorney/client privilege. Mr. Stout appealed that decision to your office, and in turn, you referred the matter for our review to ensure compliance with the Public Records Law. In a September 29, 2016 letter to the MBTA, we explained that "[i]f 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 wrote further that "[i]f 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." The MBTA responded to Mr. Stout by letter dated October 28, 2016, addressing the application of the attorney/client privilege to the Report. You then wrote to the MBTA on November 2. Having received the MBTA's October 28 response and your November 2 letter, we now review this matter for enforcement. The Public Records Law 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.. .who may take whatever measures [s]he deems necessary to insure compliance with the provisions of this section." G.L. c. 66, 10(b). We agree with the MBTA that the Report is subject to the attorney/client privilege and thus is not a public record subject to disclosure under the Public Records Law. We take this opportunity to summarize our understanding of how the attorney/client privilege applies to the present situation. In Suffolk Const. Co. v. Div. of Capital Asset Mgmt.. the Supreme Judicial Court made clear that the common law attorney/client privilege applies to government entities in the context of requests for public records, even though there is no specific statutory exemption found in the Public Records Law. 449 Mass. 444 (2007). In Suffolk Const., the SJC explained that "the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice." Id. at 448. The SJC further "state[d] explicitly that confidential communications between public officers and employees and 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." Id. at 450. In harmonizing the attorney/client privilege with the Public Records Law, the SJC concluded that, "[i]f the Legislature intended to divest government officials and entities subject to the public records law of a privilege as basic and important as the attorney-client privilege, it would have made that intention unmistakably clear." Id. at 461. We apply that framework to the present matter. To demonstrate that a document reflects a privileged communication, a custodian must show that (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Const, at 450, n.9. While we have not reviewed the Report itself, the MBTA has provided us with affidavits from its employees and its attorneys that demonstrate that: (1) the MBTA sought legal advice from attorneys at MBJ regarding employee attendance and leave management; (2) the MBTA provided MBJ with information in confidence so that MBJ could analyze that information and provide legal advice; and (3) at no time has the privileged been waived by disclosure to a third party. Additionally, we note that there have been no allegations that the privilege has been waived. Based on these factual representations, we conclude that the Report was provided by counsel to the MBTA in confidence and is a confidential communication that reflects legal advice. Because the entire Report represents a communication between counsel and client, it is our view that the Report is not a public record and there are no portions that may be segregated for disclosure under the Public Records Law. Even purely factual information that may be contained within the Report is subject to the privilege and is not required to be segregated for disclosure. See Upiohn v. United States, 449 U.S. 383, 396 (1981) ("A fact is one thing and a communication concerning that fact 2 is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?'"). While there may occasionally be exceptions to this broad rule, we have seen no evidence to suggest that an exception would apply here. Because the Report appears to be subject to the attorney/client privilege in its entirety, the MBTA is not required to disclose it in response to a request under the Public Records Law. Therefore, we conclude that the MBTA has met its obligations under the Public Records Law and that no further action is required. We now consider this matter closed. Please feel free to contact me if you have any questions. Sincerely, Jonathan Sclarsic Assistant Attorney General Director, Division of Open Government cc; John Englander, General Counsel, MBTA Matthew Stout, Boston Herald 3