Patrick N. Bryant v. Chelsea, City of (SPR 20160327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 15,2016 SPR16/327 Ms. Cheryl Watson Fisher, Esq. City Solicitor City of Chelsea 500 Broadway City Hall, Room 307 Chelsea, MA 02150 Dear Attorney .Fisher: I have received the petition of Patrick N. Bryant, Esq. of Pyle Rome Ehrenberg, P.C. appealing the response of the City of Chelsea-Law Department (City) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Bryant, on behalf of Chelsea Fire Fighters, Local 93 7 IAFF requested copies of eight (8) categories of records. The City provided Attorney Bryant with written responses in April 2016, including a cost estimate to search for email communications and a fee for copies of records. In those responses, the City withheld certain responsive records pursuant to the personnel clause of Exemption (c) of the Public Records Law and the common law attorney client privilege. Attorney Bryant appealed the City's denial of records responsive to his requests as well as the fee estimate. The Public Records Law 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). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Cheryl Watson Fisher, Esq. SPR16/327 Page 2 June 15, 2016 A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1 O(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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). To assist in requesting and responding to requests for public records please refer to 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 records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. No responsive records You informed Attorney Bryant on April 22, 2016 that the City has no records responsive to his Requests 2, 3 and 4. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 1O (a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Accordingly, whereas there are no records responsive, I will consider this appeal closed with respect to Requests 2, 3 and 4. Written, good faith estimate The City's written fee estimate is unclear and contains fees not permitted by the Regulations. The estimate indicates a cost of $.20 per page for copies of records, which is in excess of the $.05 per page amount permitted by the Regulations. Further, the City assessed costs for "mounting and indexing records;" there is no provision for such costs in the

Ms. Cheryl Watson Fisher, Esq. SPR16/327 Page 3 June 15, 2016 Regulations. It appears that Attorney Bryant has clarified and narrowed his request in an effort to reduce costs. Accordingly, based on the above I find the City's fee estimate must be revised. Exemption (c) The City informed Attorney Bryant that certain of the records responsive to his requests are being withheld pursuant to the first clause of Exemption (c). Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) (c) I find the City has failed to meet its burden of specificity to prove that any portion of the withheld records is exempt from disclosure under the first clause of Exemption (c) of the Public Records Law. Common law attorney-client privilege The City claimed that portions of the responsive records are exempt from mandatory disclosure under the common law attorney-client privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Commissioner of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. 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, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney; in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93, (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials:

Ms. Cheryl Watson Fisher, Esq. SPR16/327 Page4 June 15, 2016 (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Id. 450, fn 9, citing Matter of the Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460. It does not appear that the City produced any such index in its response. I find the City has failed to meet its burden of specificity to prove that any portion of the withheld records is exempt from disclosure pursuant to the common law attorney-client privilege. Order I find the City has failed to properly respond to a request for public records. Accordingly, the City is hereby ordered without delay to provide Attorney Bryant a detailed written response to the requests as amended by Attorney Bryant, prepared in a manner consistent with this order, the Public Records Law its Regulations. 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. cc: Mr. Patrick N. Bryant, Esq.