Stephen Phillips v. Springfield, City of - Public Schools (SPR 20171212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S Murray Sz~pewisoro f Records September 15,201 7 SPR17/1212 Anthony L. Wilson, Esq. City of Springfield - City Clerk 36 Court Street Springfield, MA 01 103 Dear Attorney Wilson: I have received the petition of Stephen J. Phillips of Dunn & Phillips appealing the see response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; 950 C.M.R. 32.08(1). Specifically, Attorney Phillips requested a copy of: 1. All communications between the Mayor, Police Commissioner and City Solicitor / regarding the Executive Order; Review Board and all communications relative to the hearing process; and the Selection of Justice Josephson, and 2. All communications between the City and the Justice Department regarding said hearing; and in reference to the selection of Judge Josephson. The City provided some records responsive to Attorney Phillips' public records requests; however, the City is withholding certain of the records because Attorney Phillips has not paid the May 24t" fee estimate. In his September 2'ld letter to this office, Attorney Phillips appeals what he believes are excessive fees charged to his client, a specifically-named police officer and the International Brotherhood of Police Officers, Local 364 (IBPO). Attorney Phillips states in the September 2nd letter, "we believe this fee schedule is excessive since salaried employees of the City provided the services; and, this public information was part of the normal Discovery process essential to our client, consistent with past practices of the Commonwealth." Furthermore, Attorney Phillips asks the Supervisor of Records (Supervisor) to order the City to waive all fees, provide all the emails without any redactions under the attorney-client privilege, and provide him with reimbursement of fees previously paid as part of the Discovery process. 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

Anthony A. Wilson, Esq. SPR1711212 Page 2 September 15,201 7 Status of the requester; reason for the request Attorney Phillips is advised that his status as the attorney representing clients in an administrative action before the Community Police Hearing Board regarding a particular incident does not offer his clients or him any greater right of access than any other person in the public realm. G. L. c. 66, 5 10(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Attorney Phillips' status and that of his clients will play no role in a determination as to whether the records should be disclosed to the public. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Phillips may wish to consider another means of seeking un-redacted records or any records that may be properly withheld under the Public Records Law. Fees by municipality under the Public Records Law A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, 5 lO(d). The fees must Id. reflect the actual cost of complying with a particular request. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, 5 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, fj lO(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 Id. per hour. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, 5 lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, 5 1O (d)(iv). See G. L. c. 66, 5 1O (d)(iii); 950 CMR 32.06(4). Attorney Phillips has requested that this office order the City to waive all fees and reimburse him for the fees he paid in the discovery process due to his clients' on-going

Anthony A. Wilson, Esq. Page 3 September 15,201 7 administrative hearing process with the City. As stated earlier in this determination, the tenets of the Public Records Law are distinct from the administrative or judicial discovery practices; therefore, the City may charge reasonable fees for the cost of providing Attorney Phillips and his clients with records requested under the Public Records Law. While a municipality has discretion in waiving fees under the Public Records Law, this office cannot mandate that they do so. Nor does this office have authority to order the City to reimburse any fees that were paid by Attorney Phillips under the discovery process. Fee Estimate - May 24t'' estimate The City's May 24t" written estimate, to which Attorney Phillips objects, includes 61 hours to search for, review, redact and copy approximately 3,700 pages of email communications. The City assessed the 61 hours of time at $25.00 per hour. However, it is not clear whether that is the lowest paid hourly rate for each of the tasks necessary to comply with Attorney Phillips' request. In a September 1 2te~lep hone conversation with an attorney in the Public Records Division, the City's Public Records Coordinator Andrea Stone explained that the majority of the 61 hours of time is dedicated to reviewing the records to determine any exempt material within the content of the records, redact the content and copy each record. The City has informed Attorney Phillips that there are likely records that will be withheld as attorney-client privileged communications. The total cost of the estimate is $1,710.00. It is my understanding that the City was advised by this same Public Records Division attorney that the City cannot charge for segregation and redaction unless such redaction is required by law. G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). However, if the City is charging for redaction for something other than required by law, the City must petition the Supervisor of Records to assess a fee for such redaction. See id. It is unclear whether the $25.00 dollars per hour is the lowest paid hourly rate for each task listed in the estimate, and how many hours of the 6 1 hours assessed are designated to each task. It is also uncertain why the City estimates that compliance with this request will take 61 hours to complete. Attorney-client privilege In subsequent communications with Attorney Phillips in June and September 2017, the City advised Attorney Phillips that some of the responsive communication records may be withheld pursuant to the common law attorney-client privilege as recognized by Suffolk Constr. Co.. Inc. v. DCAM, 449 Mass. 444 (2008). 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 of the Dept. of Mental Retardation (No. 11,424 Mass. 430 (1997).

Anthony A. Wilson, Esq. Page 4 September 15,2017 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., 449 Mass. 444. 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. 609,614-61 5 (1 993). 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 (1 83 1). The Court, however, admonished that a governmental Id. entity has the burden of proving the existence of the attorney-client privilege. 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. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reoryanization of Elec. 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). During the September 12"' telephone conversation with you and Ms. Stone, a Public Records Division attorney explained that 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, fj 10A(a) (emphasis added). Therefore, the City must provide a privilege log or detailed description of the records that the City will withhold pursuant to attorney client privilege. Conclusion Accordingly, whereas the City will provide a supplemental response to the request and its written estimate, I will consider this appeal closed with the proviso that the response is provided to Attorney Phillips in a manner consistent with this order, the Public Records Law and its

Anthony A. Wilson, Esq. Page 5 September 15,201 7 Regulations within ten (1 0) 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 Phillips may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephen J. Phillips, Esq.