Goldberg, Scott v. Cambridge, City of - Police Department (SPR 20150930)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 21, 2016 SPRlS/930 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 a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Goldberg requested a copy of"the Police Report of Incident" related to a specifically identified incident. This request was the subject of a previous appeal. See SPR15/691 Determination of the Supervisor of Records (December 8, 20 15). In the December 8 determination, I found the Department had not met its burden to withhold the responsive record pursuant to the attorney-client privilege. Accordingly, I ordered the Department to provide Attorney Goldberg with the requested records or a written explanation, with specificity, how a particular exemption applies to each record. See SPR15/691. In response to this order, the Department provided Attorney Goldberg with a letter dated December 18, 2015 in which it reiterated its position that the responsive record may be withheld under the attorney-client privilege. Attorney Goldberg appealed this response. 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 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 ---------------------------------W-~~~t~ma~d~tC-------------------------------------

Mr. James J. Mulcahy, Esq. SPR15/930 Page 2 January 21,2016 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 As discussed in the December 8 determination, 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. 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. ChiefofPolice ofLexington, 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. Attorney Goldberg may wish to consider another means of seeking to obtain any existing responsive records. Attorney-client privilege In your December 18 letter, you indicated that the requested records would be withheld from disclosure pursuant to the 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). In the December 18 letter, you explain that the incident in question "involved the potential ofliability for the [City]" and that the City "has in-house legal counsel for legal matters involving the City through the City Solicitor's Office." You explain that, given the potential liability, a Department officer wrote a report titled "City Solicitor's Report" that was directed to the City Solicitor and that the incident type/offense was classified in the report as a "City Solicitor Report." This response does not address whether the communications were received during the course of the client's search for legal advice. See Suffolk, 449 Mass. at 450 n.9. Therefore, I find the Department has not established that the responsive police report may be withheld under the attorney-client privilege. In addition, access to a record requested pursuant to the Public Records Law rests on the content of the record and not the way in which the record is labeled.

Mr. James J. Mulcahy, Esq. SPR15/930 Page 3 January 21,2016 See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002) ("[ w ]hat is critical is the nature or character of the documents, not their label."); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). An attorney on my staff · discussed this matter with you. You explained that this report is the only responsive record in the City's possession. However, it remains unclear how this report, in its entirety, may be withheld under the attorney-client privilege. 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 of this 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, you must provide the responsive records. To assist the City in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available 'during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provi d in this determination for further information. Enclosure cc: Mr. Scott D. Goldberg, Esq.