David E. Lurie v. Boston, City of - Law Department (SPR 20160703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/703 Ms. Caroline 0. Driscoll, Esq. Senior Assistant Corporation Counsel City of Boston -- Law Department City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of David Lurie, Esq., on behalf of his client Gary Godinho appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Lurie requested "[a]ll emails, text messages, and instant messages (with attachments) to or from" a specifically identified person regarding the Boston Grand Prix IndyCar race. Attorney Lurie also requested the electronic calendar for the specific individual for a specific time period. After receiving payment from Attorney Lurie, the City provided certain responsive records and withheld others. Attorney Lurie appealed this response. In a response dated August 15, 2016, the City provided certain records and explained it "found 341 emails to be responsive, 122 to be privileged, 15 to be non-responsive, and 1 as exempt." Subsequently, Attorney Lurie asked the City for "a log of the 123 documents withheld on grounds of attorney-client privilege or any exemption." Attorney Lurie also informed the City he was not able to access certain email attachments. In a response dated August 25, 2016, the City informed Attorney Lurie it would provide a privilege log "if ordered by the Supervisor of Public Records to do so." With respect to the email attachments, the City indicates it is "still attempting to gather all that we can" and "the City may not be in possession of records sent to a City employee via Dropb ox or any other cloud service." You also state "we are doing our best to find what records we have that were mentioned in the emails produced to you." Email attachments Under the Public Records Law, the City is not required to create a list of records or any record in response to a public records request. The duty to comply with requests for information OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Caroline 0. Driscoll, Esq. SPR16/703 Page 2 September 16, 2016 extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26). Based on the City's response, it is unclear whether the City possesses the email attachments at issue. Therefore, the City must clarify this matter. See 950 C.M.R. 32.03. Production ofp rivilege log 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 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). The City's response lacks the specificity required in a denial of access to public records under the attorney-client privilege. Accordingly, the City must provide Attorney Lurie a privilege index for responsive records withheld under the attorney-client privilege. See Suffolk, 449 Mass. at 460. I also find the City has not met its burden to withhold responsive records under an exemption to the Public Records Law. Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). I understand an attorney on my staff contacted you about this matter and provided a copy of Attorney Lurie's appeal petition to this office. Order Accordingly, the City is hereby ordered to provide Attorney Lurie with a response to the request, 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 re sec.state. a.us. ~ We tr ou , Supervisor of Records cc: Mr. David E. Lurie, Esq.