Clairmont, Barry v. Pittsfield, City of - Department of Public Utilities (SPR 20140500)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 5, 2014 SPR14/500 Ms. Kathleen E. Degnan, Esq. City of Pittsfield Office of the City Solicitor 70 Allen Street, Suite 200 Pittsfield, MA 01201 Dear City Solicitor Degnan: I have received the petition of Barry Clairmont appealing the response of the City of Pittsfield (City) to his September 2, 2014 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(6). Specifically, Mr. Clairmont requested copies of email and written communications between City departments regarding rental space located at 100 North Street. In an October 7, 2014 telephone conversation with an attorney on my staff, you stated that in its initial disclosure of responsive records, the City inadvertently failed to provide Mr. Clairmont with copies of all records responsive to his request. You further stated that the City subsequently provided Mr. Clairmont with copies of responsive records. It is important to note that it is the duty of a record custodian to use her superior knowledge of the records to assist a requester in obtaining the records. 950 C.M.R. 32.05(4). In his petition to this office, Mr. Clairmont stated that the City provided duplicate copies of certain records and copies of unresponsive records. In response, you informed this office that the City provided Mr. Clairmont with copies of requested records, and furthermore, the City removed duplicate copies of the responsive records and did not charge Mr. Clairmont for copies of duplicate records. Right ofA ccess; Fees In his petition Mr. Clairmont also noted that he is a member of the City Council. Please note that Mr. Clairmont's personal status as a member of the City Council does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Kathleen E. Degnan, Esq. SPR14/500 Page Two November 5, 2014 Mr. Clairmont also queried whether a custodian of records could charge a City Council member for copies of public records. As the identity of the requester has no bearing upon the public status of records, likewise it has no bearing on whether any fees should be assessed. Attorney-Client Privilege In an October 15, 2014 telephone conversation with my staff attorney, you stated that the City withheld two responsive records pursuant to the common law attorney-client privilege. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the City did not contain the specificity required in a denial of access to public records, as this denial was not provided in writing to Mr. Clairmont. To comply with the specificity requirement a records custodian must cite an exemption, and specifically explain the applicability of the exemption to the requested records. I find your telephone conversation with my staff did not satisfy this burden with respect to the City's attorney-client privilege claim. Accordingly, the City is hereby ordered to provide all remaining responsive records in a manner consistent with this decision and the Public Records Law. If the City intends to withhold any records pursuant to the common law attorney-client privilege, Mr. Clairmont must be provided with a privilege index, as mandated by the Supreme Judicial Court. See Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 44, 460 (2008). This administrative appeal is now closed. cc: Mr. Barry Clairmont