Kaplan, Esq., Stephen v. Northampton, City of - Public Schools (SPR 20150104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 6, 2015 SPRlS/104 Mr. Alan Seewald, Esq. Northampton City Solicitor 71 King Street Northampton, MA 01060 Dear Attorney Seewald: I have received the petition of Stephen Kaplan, Esq. appealing the response of the City of Northampton (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Kaplan requested a copy of invoices related to contracts between the City and a specifically named law firm for services rendered during a particular time period. Attorney Kaplan also requested a copy of records of approval, payment, or other action taken by the City with regard to such contracts and invoices. In your written response dated February 10,2015, you provided billing summaries for services the law firm provided to the City during the specified time period. However, you did not provide certain billing details and claimed such information is exempt from disclosure pursuant to the attorney-client privilege. In addition, the City's response did not clearly state whether it was providing records responsive to Attorney Kaplan's request for records of approval, payment, or other action taken by the City with regard to the contracts and invoices in question. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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, § 10 ( c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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); Flatley, 419 Mass. at 511. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Alan Seewald, Esq. SPR15/104 Page Two May 6, 2015 Common law attorney-client privilege The attorney-client privilege protects confidential communications between an attorney and his client. However, in order for the claim of attorney-client privilege to be valid, the custodian 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & 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). Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions ofthe nature ofthe services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A.3d 994, 1001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681, 691, 693 (2000)). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at 1002. Further, the Court refused to adopt a per se rule that all descriptive narratives contained in invoices for legal services are subject to the attorney-client privilege. Id. at 1001. As in Hampton, the City's response fails to explain with specificity why the attorney client privilege applies to the requested records. You did not provide the detailed bills describing the work performed by counsel and claimed they are "privileged attorney-client communications." This response does not provide a citation of any authority for such a claim, nor does it explain how such a claim could justify withholding all descriptions of services rendered in the responsive invoices. As a result, I find that the City failed to satisfy its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The Massachusetts Supreme Judicial Court found that a records custodian must provide a privilege index to withhold records under the common law attorney-client privilege. See Suffolk Constr. Co., Inc., 449 Mass. at 460. Whereas the City has not done this, it has not met its burden under the law to permit such withholding. The City is hereby ordered, within ten (1 0) days of this order, to provide Attorney Kaplan with the requested records. Ifthe City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide Attorney Kaplan with a written explanation, with specificity, how a particular exemption applies to each record. If the City intends to withhold any records pursuant to the common law attorney-client privilege, it must

Mr. Alan Seewald, Esq. SPR15/104 Page Three May 6, 2015 provide Attorney Kaplan with a privilege index. The City must also clearly indicate in its response whether it has provided, or will provide, records responsive to Attorney Kaplan's request for records of approval, payment, or other action taken by the City with regard to the contracts and invoices in question. I will consider this administrative appeal closed. illiams Supervisor of Records cc: Mr. Stephen R. Kaplan, Esq.