Diego Ibarguen, Esq. v. Brockton, City of - Law Department (SPR 20160700)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/700 Mr. Philip Nessralla, Jr. City Solicitor City of Brockton Brockton City Hall - Law Department 45 School Street Brockton, MA 02301 Dear Attorney Nessralla: I have received the petition of Diego Ibarguen, Esq. of Hearst Corporation, on behalf of his client, Kathy Curran, an investigative reporter for WCVB Channel 5 Boston, appealing the response of the City of Brockton-City Solicitor (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Curran requested a copy of: 1. Agreements (contracts) for legal services between private law firms or attorneys and the City from January 1, 2015 through June 20,2016, and 2. Itemized invoices for legal services from private law firms or attorneys representing the City of Brockton officials and employees from January 1, 2015 through June 20, 2016. On August 15, 206, the City denied Ms. Curran's request in its entirety pursuant to the common law attorney client privilege. Ms. Curran's Legal Counsel, Diego Ibarguen appealed this denial. 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Philip Nessralla, Jr., Esq. SPR16/700 Page2 September 16, 2016 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Attorney client privilege The question of whether this privilege extends to governmental entities was discussed in 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 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). Invoices Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A.3d 994, 1001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681, 691, 693 (2000)). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at 1002. Further, the Court refused to adopt a per se rule that all descriptive narratives contained in invoices for legal services are subject to the attorney-client privilege. Id. at 1001. As in Hampton, the City's response fails to explain with specificity why the attorney client privilege applies to withhold the invoices in their entirety. A custodian has a duty to segregate exempt material, specifically claim an exempt on the redacted portions and provide the balance of each invoice. The City has failed to show any nexus between funds paid and confidential communications that are eligible for withholding from mandatory disclosure. Furthermore, each redaction under the attorney-client privilege would need to be supported by the standards outlined in Suffolk.

Mr. Philip Nessralla, Jr., Esq. SPR16/700 Page 3 September 16, 2016 Contracts for legal services The City also claims that the contracts/agreements between private law firms or private attorneys and the City may be withheld in their entirety under the attorney client privilege. Again, the City has failed to show any nexus between the attorney client privilege and the City's agreements for legal services between the City and private law firms/private attorneys. The contracts are agreements with private contractors for legal services to aid the City, its officials and employees and paid with taxpayer monies. There is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. at 436 n.l5. (emphasis added). Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). Therefore, I find that any contracts for legal services are public records, subject to redaction under the Public Records Law. Order I find the City has failed to respond to a request for public records. Accordingly, the City is hereby ordered to provide Attorney Ibarguen with a revised response to the request made by his client Ms. Curran, prepared in a manner consistent with this order, the Public Records Law and 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. Diego Ibarguen, Esq. Ms. Kathy Curran