Goldberg, Scott v. Cambridge, City of - Police Department (SPR 20150691)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 8, 2015 SPRlS/691 Mr. James J. Mulcahy, Esq. City of Cambridge - Police Department 125 Sixth Street Cambridge, MA 02142 Dear Attorney Mulcahy: I have received the petition of Scott D. Goldberg, Esq. appealing the response of the City of Cambridge-Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Goldberg requested a copy of a specifically identified incident report. You denied this request, claiming the responsive record is exempt from disclosure pursuant to the attorney-client privilege. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Purpose of request; identity of requester In his petition Attorney Goldberg indicates his intent to obtain the requested records in connection with his client's claim for compensation. Please note that the reason for which a requestor seeks access to or a copy of a public record 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, OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. James J. Mulcahy, Esq. SPR15/691 Page Two December 8, 2015 371 Mass. 59, 64 (1976). Accordingly, Attorney Goldberg's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Goldberg may wish to consider another means of seeking to obtain any existing responsive records. Attorney-client privilege In your August 3, 2015 letter, you indicated that the requested records would be withheld from disclosure pursuant to a claim of a common law attorney-client privilege. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614-15 (1993). 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). 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. Therefore, the Department has not established that the responsive police report may be withheld under the attorney-client privilege. In a telephone conversation with a member of my staff, you reiterated your position that the responsive record may be withheld under the attorney-client privilege. However, the Department has not provided a supplemental explanation, in writing, how the attorney-client privilege applies to the responsive police report. A member of my staff subsequently left you a voice message with you explaining this.

Mr. James J. Mulcahy, Esq. SPR15/691 Page Three December 8, 2015 Conclusion Accordingly, whereas the Department has not overcome the presumption that the requested records are public, you are hereby ordered, within ten (1 0) days, to provide Attorney Goldberg with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Goldberg 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 provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0.00), custodian of records shall provide written good faith estimate). Once the fees are paid, yo ust provide the responsive records. Supervisor of Records cc: Mr. Scott D. Goldberg, Esq.