Colman Herman v. City of Boston - Property Management Department (SPR 20180423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords Aprilll,2018 SPRlS/423 Shawn A. Williams, Esq. Director of Public Records City of Boston - Property Management Department One City Hall Plaza, Room 811 Boston, MA 02108 Dear Attorney Williams: I have rec.eived the petition of Colman Herman appealing the response of City of Boston Property Management Department (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested copies of "emails and letters to the city denouncing Delaware North's business conduct since November 2016." Previous appeal This request was the subject of a previous appeal. See SPRl 8/153 Determination of the Supervisor of Records (February 7, 2018). I closed SPR18/153 by ordering the City to provide a response to Mr. Herman made in accordance with the Public Records Law, its Access Regulations and the order within ten business days. Subsequently, the City provided Mr. Herman with an attorney-client privilege log. Unsatisfied with the City's response, Mr. Herman petitioned this office and this appeal, SPRl 8/423, 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, § IO(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 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

Shawn A. Williams, Esq. SPR18/423 Page 2 April 11,2018 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 (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, 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. The City did not provide any detail or specificity on how the responsive records are protected by the common law attorney-client privilege. The City must first apply the three-step test in Suffolk to prove that the records fall under the protection of the attorney-client privilege and cannot be disclosed to the public. Furthermore, 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 of Records "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, § lOA(a). Subsequent to the intervention of a member of the Public Records Division staff, I learned the City intends to provide another response to Mr. Herman addressing its attorney-client privilege claims.

Shawn A. Williams, Esq. SPR18/423 Page 3 April 11, 2018 Order Accordingly, the City is ordered to provide Mr. Herman with a response to the request, provided 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. Mr. Herman may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Colman Herman