Cohn, Jonathan v. Boston, City of - Law Department (SPR 20150556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 5, 2015 SPR15/556 Ms. Caroline 0. Driscoll, Esq. Assistant Corporation Counsel City of Boston - Law Department City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Jonathan Cohn appealing the response of the City of Boston (City) to his for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in a request dated April2, 2015, Mr. Cohn requested copies of records between the Mayor's Chief of Staff and others from May 1, 2014 to the present. The City provided responsive records, but withheld others pursuant to the deliberative process exemption and the common law attorney client privilege. G. L. c. 4, § 7, (26) (d); Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). Mr. Cohn then requested that the City create a custodial or privilege log related to this response, detailing the withheld communications. The City declined this request. The sole question in Mr. Cohn's July 6, 2015 petition to this office is whether a records custodian is required to provide such a log to a requester to support a denial of access under the Public Records Law. Subsequent to the opening this appeal, Mr. Cohn sent this office a letter dated August 15, 2015. In this letter Mr. Cohn stated that he made a subsequent request to the City on June 4, 2015. On August 7, 2015, the City provided responsive records but again withheld others pursuant to the attorney client privilege. In the August 15 letter, Mr. Cohn raises the same question he presented in his July 6 petition, specifically, whether the City required to provide a privilege log to justify withholding records under the attorney client privilege. As a result, Mr. Cohn asks this office to jointly analyze the City's refusal to provide privilege logs in its responses to his requests dated April 2 and June 4. I will do so in this determination. Only the Supervisor of Records (Supervisor) may require a custodian to compile an index of requested records; this order is made by the Supervisor to aid in review of a public records OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Caroline 0. Driscoll, Esq. SPR15/556 Page Two October 5, 2015 appeal. The determination as to whether to order an index lies solely in the hands of the Supervisor. 950 C.M.R. 32.08(7). The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. In his petition dated July 6, Mr. Cohn argues that the court in Suffolk stated a custodian is compelled to create a privilege index to support a common law attorney client privilege claim. See Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. at 460. It is important to note that this citation references a prior decision by the Supreme Judicial Court regarding the burdens of custodians. See Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 384 (2002). It is important to note that both the Suffolk and Worcester references relate to the prerogative of a judge in the context of litigation to order an index. Id., citing Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 295 (1979) (judge may employ the method of review he deems most advisable, and there is room for flexibility) (emphasis added). In its response, the City stated that it "does not interpret the Supervisor's regulation as requiring a custodial or privilege index in response to a public records request." I agree. Accordingly, whereas a requester may not compel a custodian to create a record, further, whereas only the Supervisor of Records may compel a custodian to create a custodial index, and whereas there is no record responsive to Mr. Cohn's request, I hereby find the City acted properly in its responses. This City is reminded, however, that in a denial of access to public records a custodian must provide 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 red cted portion of the responsive record. Supervisor of Records cc: Mr. Jonathan Cohn