John A. Hawkinson v. Cambridge, City of - Office of the City Clerk (SPR 20160185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 24, 2016 SPR16/185 Ms. Nancy E. Glowa, Esq. City Solicitor City of Cambridge 795 Massachusetts A venue Cambridge, MA 0213 9 Dear Attorney Glowa: I have received the petition of John Hawkinson appealing the response of the City of Cambridge- Office ofthe City Clerk (City) to a request for public records. G. L. c. 66 § IO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Hawkinson requested meeting announcements, notes and correspondence related to the ad hoc committee of four City Councillors who met to review the changes to the City Council rules. Donna P. Lopez, City Clerk provided responsive records on March 8, 2016, waiving the applicable public records fees. However, the City is withholding certain documents under 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Common law attorney-client privilege In a March 8 email to Ms. Lopez, Mr. Hawkinson asked the City to identify what records have been withheld under the common law attorney-client privilege. In a March 15 email, Ms. Lopez stated, "the documents for which the privilege has been asserted were created by the City Solicitor in her role with the Mayor's ad hoc committee as confidential legal advisor, and the privilege as to those documents has not been waived." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Nancy E. Glowa, Esq. SPR16/185 Page2 March 24, 2016 The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). A records custodian claiming the attorney-client privilege under the Public Records Law 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). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. The attorney-client privilege pertains only to disclosure of confidential client communications; it does not apply to mere facts. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). However, the City has failed to prove the existence of an attorney-client relationship under these circumstances; simply stating that the records were created by the City Solicitor in her role with the ad hoc committee as confidential legal advisor does not satisfy the City's burden of proof. Furthermore, the City has not identified the specific records that it believes fall into the attorney client privilege, and that the records are communications received during the course of the client's search for legal advice. See Suffolk, 449 Mass. at 450 n.9. Subsequent to the opening of this appeal the City informed an attorney on my staff that the City would be willing to provide a supplemental response to Mr. Hawkinson that addresses the issues discussed above. Conclusion Accordingly, I will consider this appeal closed with the proviso that, within ten (1 0) days, the City provides Mr. Hawkinson a response to the request, provided in a manner consistent with this order, the Public Records Law, its Access Regulations and applicable case law. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Hawkinson 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.

Ms. Nancy E. Glowa, Esq. SPR16/185 Page 3 March 24, 2016 To assist in responding to requests for public records I advise the City to review a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is 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 r cords custodian in person to conduct training workshops on the Public Records Law upon requ st. Please contact my office directly at the telephone number provided in this determ· ation fo further information. cc: Mr. John Hawkinson Ms. Donna P. Lopez, City Clerk