Jordan E. Burke, Esq. v. Pittsfield, City of - City Clerk (SPR 20171016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 4, 2017 SPR17/1016 Jody L. Phillips City Clerk City of Pittsfield 70 Allen Street Pittsfield, MA 01201 Dear Ms. Phillips: I have received the petition of Jordan Burke, Esq. appealing the response of the City of Pittsfield (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 14, 2017, Attorney Burke requested "[a~ll emails exchanged between" identified individuals "from April 30th 2017 through May lOt 2017." Attorney Burke mentioned that his "request is specifically seeking, but not limited to, any emails that concern, address or outline the City's options in responding to the arbitrator's decision issued on April 30th 2017" by a specified Arbitrator. In responses dated July 5, 2017 and July 17, 2017, the City denied his request claiming the attorney-client privilege and work product doctrine. Unsatisfied with the City's responses, Attorney Burke petitioned this Office and this appeal, SPR1711016, was opened as a result. 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, §lOA(d ); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); 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). 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. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Judy Phillips SPR17/1016 Page 2 August 4, 2017 If there are any fees associatedwith a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's July 5th and Jih responses ih In its July 1 response, the City claimed the responsive records were protected from disclosure pursuant to the common law attorney-client privilege and work product doctrine. In its ih July 1 response, the City indicated that "[a]s stated in the first response dated July 5, 2017, the City of Pittsfield believes these documents to be protected by the attorney client privilege and work product doctrine and are not subject to production as set forth in Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2007)." Therefore, the City advised that the request has been denied. Common law attorney-client privilege The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Id. 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 Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). 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. Comm'r ofthe Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). 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: (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. at 450, fn 9, citing Matter of the Reorganization ofElec. Mut. Liab.Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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).

Judy Phillips SPR17/1016 Page 3 August 4, 2017 Record custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. G. L. c. 66, § 10A(a). Based on the City's responses, the City has not sufficiently provided information to indicate how the privilege applies to all the responsive records in Attorney Burke's request or the grounds upon which the attorney-client privilege is being claimed. The City must provide further information regarding the records it withheld as privileged, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney client privilege is being claimed. The City also claimed that it withheld the responsive record under the work product doctrine. I find that the City has not established the attorney-client relationship in this context. Accordingly, I find that the Department has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege or the work product doctrine to withhold the records in their entirety. Further, under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a). Any redaction under the attorney-client privilege however, would need to be supported by the standards outlined in Suffolk Constr. Co. I understand that a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, whereas the City has indicated that it will provide Attorney Burke with a supplemental response, I will consider this appeal closed with the proviso that the City provides said response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Attorney Burke may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ·~ Rebecca S. Murray Supervisor of Records cc: Jordan Burke, Esq.