Julia Malakie v. Newton, City of - Law Department (SPR 20160504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 4, 2016 SPR16/504 Ms. Donnalyn B. Lynch Kahn, Esq. City Solicitor Law Department Newton City Hall, Room 208 1000 Commonwealth A venue Newton Centre, MA 02459 Dear Attorney Kahn: I have received the petition of Julia Malakie appealing the response of City of Newton (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Malakie requested a copy of"the proposed settlement agreement with National Grid regarding gas leaks and damages to [C]ity trees." You denied access to the responsive record in a response dated July 12, 2016. The City's July 12 response In the City's July 12 response to Ms. Malakie you indicate "the Law Department is asserting the attorney-client privilege in connection with the production of the document at this time." You further explain "[t]he document is a draft and has not been fully executed" and "production of the document at this time could prejudice its strategy in pressing litigation." You indicate "if the settlement is approved, the document will become public record and you can submit another request at that time." I find the City's response lacks the specificity required to withhold responsive records under an exemption to the Public Records Law or the attorney-client privilege. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n. 9 (2007); Flatley, 419 Mass. at 511. In addition, based on the Ms. Malakie's petition and a conversation you had with an attorney on my staff, it appears this request may raise issues that invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the applicability of any provisions of the Open Meeting Law. It is recommended that the parties contact the AGO for a determination on this issue. See G. L. c. 30A, § 23. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Donnalyn B. Lynch Kahn, Esq. SPR16/504 Page2 August 4, 2016 I understand you informed an attorney on my staff that the City will provide a supplemental response to this request that addresses the issues raised in this determination. Accordingly, I will consider this appeal closed with the proviso that the City provide Ms. Malakie a response in a manner consistent with this order, the Public Records Law and its Regulations. The response must specifically explain the basis for withholding responsive records. 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. il / L' aw A. Williams Supervisor of Records cc: Ms. Julie Malakie