Quemere, Andrew v. Lowell, City of - Law Department (SPR 20150469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 21, 2015 SPRlS/469 Ms. Rachel M. Brown, Esq. City of Lowell - Law Defartment 375 Merrimack Street, 3r Floor Lowell, MA 01852 Dear Attorney Brown: I have received the petition of Andrew Quemere of The Bay State Examiner appealing the response ofthe City of Lowell- Law Department (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Quemere requested documents concerning the disciplinary hearing of specifically identified individual. This request was the subject of a previous appeal. See SPR15/099 Determination of the Supervisor of Records (April15, 2015). In a response to this determination dated April15, 2015, the Department provided Mr. Quemere with a supplemental response in a letter dated April 27, 2015. In your initial response dated January 26, 2015, you denied his request claiming that the responsive records are exempt from disclosure pursuant to Exemption (d) because they concern ongoing litigation. G. L. c. 4, § 7(26)(d). In the determination dated April15, I found the Department's response did not contain the specificity required in a denial of access to records. I ordered the Departmentto provide Mr. Quemere with the requested records or a written explanation, with specificity, how a particular exemption applies to each record. In the April 27 response, you provided some responsive records, but redacted portions of records pursuant to Exemption (c). You also withheld other records in their entirety under the attorney-client privilege and Exemption (b) of the Public Records Law. This response also contained a fee estimate. Mr. Quemere provided payment but appealed the Department's withholding of certain records. Mr. Quemere does not appear to object to the redactions made. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Rachel M. Brown, Esq. SPR15/469 Page Two September 21, 2015 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); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Common law attorney-client privilege In your April27 letter, you state the Department is withholding one category of records because "several records created and reviewed in connection with the disciplinary hearing for Lt. Siopes were created and reviewed by counsel, and are privileged" and cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) to support this claim. 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, 449 Mass. at 450 n.9; 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). This response fails to prove the existence of an attorney-client relationship because it does not explain who the attorney and client are in this context. Further, it does not address whether the communications were received during the course of the client's search for legal advice, nor whether the communications were made in confidence, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. As a result, the Department failed to meet its burden of explaining with specificity how the withheld records are exempt from disclosure pursuant to the attorney-client privilege. Exemption (b) In the April 27 letter you also state the "City will not produce documents that are part of Lt. Siopes's personnel file and were not used during the disciplinary hearing" and cite

Ms. Rachel M. Brown, Esq. SPR15/469 Page Three [DATE], 2015 Exemption (b) and Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003) to support this claim. Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, §7 (26) The Department provided no specificity to prove that the withheld records relate solely to internal personnel rules and practices of the City, nor did it explain how the proper performance of the City's necessary governmental functions requires the withholding of these records. As a result, I find the Department failed to meet its burden in proving that records may be withheld under Exemption (b). Further, the records custodian's classification of materials as "personnel information" is not conclusive. Wakefield Teacher's Ass'n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002). The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (stating that the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (1 0) days, to provide Mr. Quemere with the remaining requested records. If the Department maintains that any portion of the remaining responsive records are exempt from disclosure it must, within ten ( 1 0) days provide to Mr. Quemere a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provide to this office. It is preferable to send an electronic copy of this response to this office t pre@sec.state.ma.us. cc: Mr. Andrew Quemere