Joseph A. Padolsky v. Somerville City Solicitor (SPR 20180085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Connnonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 31,2018 SPR18/085 Shannon Phillps, Esq. Assistant City Solicitor City of Somerville 93 Highland A venue Somerville, MA 02143 Dear Attorney Phillips: I have received the petition of Joseph Padolsky, Esq. appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 2, 2018, Attorney Padolsky requested all records related to an internal affairs investigation. Attorney Padolsky indicated that these records should include "any and all draft reports/letters to or from" an identified Chief and Captain, connnunications from an identified Captain to the City Solicitor's Office, "notes, drafts, recordings, summaries, or any other documents [sic] relates to the workings of IA." The City provided a response in which it provided access to certain records and denied access to others pursuant to Exemption (d) as work product and the common law attorney-client privilege. Unsatisfied with the City's response, Attorney Padolsky petitioned this office and this appeal, SPR18/085, was opened as a result. Purpose of request; right of access In his petition, Attorney Padolsky notified this office that he represents the Somerville police officer involved in this matter. Attorney Padolsky is advised that, under the Public Records Law, the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Padolsky' s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Shannon Phillips, Esq. SPR18/085 Page 2 January 31,2018 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, § 10A(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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 January 11h response In its January 17, 2018 response, the City indicated that it is "withholding email communications between the Law Office and [an identified Captain/investigator] as communications were provided for the purpose of providing legal advice which was intended to be and kept confidential and is therefore exempt from disclosure by attorney-client privilege, and/or these communications fall outside of the definition of public records pursuant to exemption G. L. c. 4, §7 (26)(d) as they constitute work product. (See DaRosa v. New Bedford, 471 Mass. 446 (2015))." 111 The City's January 30 supplemental response Subsequent to the opening of this appeal, the City provided a supplemental response on January 30,2018. In its January 30th response, the City provided further explanation as to how the attorney client privilege and the work product doctrine apply to withhold the email communications it withheld from disclosure. Exemption (d)- Work product doctrine The City indicated it withheld responsive records pursuant to Exemption (d) of the Public Records Law because the records constitute work product. Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being

Shannon Phillips, Esq. SPR18/085 Page 3 January 31,2018 developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or maybe based G. L. c. 4, §7 (26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). To support its Exemption (d) claim to withhold email communications between the Assistant City Solicitor and the investigator in its entirety under the attorney work product doctrine, the City cited the Supreme Judicial Court (SJC) decision in DaRosa v. New Bedford, 471 Mass. 446 (2015). The City indicated that "[g]iven the anticipation oflitigation and the legal proceedings upcoming, by way ofthe upcoming disciplinary hearing, work-product exemption also applies to all cited communications in the attached privilege log." The City indicated that "[a]s deemed by the Court in DeRosa, [sic] where an agency like the City of Somerville is engaged in litigation and case preparation decisions, opinion and fact work product fall within exemption (d)" of the Public Records Law. The City indicated that since the disciplinary letter was issued to Attorney Padolsky's client in May of2017, Attorney Padolsky has "repeatedly expressed [his] client's likely plan and willingness to proceed with additional litigation related to the City's handling of this particular investigation and the disciplinary charges that have been brought against" his client. As such, the City indicates that the "workings and communications between the City and the investigator relative to this drafted documentation, prior to the final document being issued ... " are protected under the work product doctrine. In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Accordingly, based on the City's response, which indicates that Attorney Padolsky has repeatedly indicated that his client is willing to pursue litigation against the City and that the workings and communications between the Assistant City Solicitor and the investigator relative to the drafted documentation were prepared in anticipation of litigation, I find the application of DaRosa is appropriate to withhold records under the attorney work product doctrine.

Shannon Phillips, Esq. SPR18/085 Page4 January 31,2018 Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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 (I) 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, 449 Mass. at 450 n.9; 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). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Under its attorney client privilege claim, the City cited the Ellingsgard decision, which stated that "the attorney client privilege may extend to communications from the client's agent or employee to the attorney." Ellingsgard v. Silver, 352 Mass. 34, 40 (1967). The City indicated that because the investigator is an employee of the City, assigned to investigate this matter on behalf of the City, the investigator is a client of the Assistant City Solicitor. As such, the City indicates that any communications between them for the purposes of seeking legal advice should be protected by the privilege. As the City has established the attorney-client relationship between the investigator and the Assistant City Solicitor, the City indicated that during the course of the investigation, the investigator "sought legal advice and assistance ... relative to documentation [the investigator] was going to provide to Attorney Padolsky's client and for which [the investigator] wanted legal assistance to ensure the sufficiency of the reports for future legal proceedings." Further, under the attorney-client privilege, disclosing attorney-client communications to a third party generally undermines the privilege. Comrn'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). However, the City indicated that although some email communications reveal that a Deputy Police Chief and a Police Lieutenant were copied on some of the emails, this does not waive the privilege. This is because, according to the City, the Deputy Chief oversees the Office of Professional Standards and the Lieutenant is assigned to the Office of Professional Standards, to assist the City in interviewing Attorney Padolsky' s client. As required by the Public Records Regulations, 950 C.M.R. 32.06(3)(d), the City provided a privilege log describing 37 emails that it withheld under the attorney-client privilege.

Shannon Phillips, Esq. SPR18/085 Page 5 January 31,2018 Upon review of the City's log, the names of the author, recipients, dates, and subject matter of emails of the records are evident. Whereas the City provided a privilege log to Attorney Padolsky and claims that the responsive email communications were made in confidence by a client, the investigator, for the purpose of obtaining legal advice from its counsel, the Assistant City Solicitor, and the privilege has not been waived, I find that the City has met its burden of specificity in applying the attorney-client privilege and the Supervisor may not compel release of these records. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas I find the City has met its burden to withhold the responsive records under the attorney-client privilege and work product doctrine, I will consider this administrative appeal closed. If Attorney Padolsky is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § I O(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Joseph Padolsky, Esq.