Susan C. Murphy v. Brookline, Town of (SPR 20180774)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 12,2018 SPRl81774 Patrick J. Ward Town of Brooltline 333 Washington Street, Room 208 Brookline, MA 02445 Dear Mr. Ward: I have received the petition of Susan C. Murphy, Esq. of Dain, Torpy, Le Ray, Wiest & Garner, P. C appealing the response of the Town of Brooltline (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 1,2018, Attorney Murphy requested the following records: " 1. Copies of all the following which relate in any manner, directly or indirectly, to the review, study or analysis of land owned by Pine Manor College, including without limitation, the review, study or analysis of environmental conditions, appraisals, construction, permitting, zoning, and eminent domain (collectively 'Consultant Work'), and the cost of any and all of the foregoing: attorney and other consultant engagement letters, bids, proposals, scopes of work, contracts, and agreements related in any manner to Consultant Work (collectively, 'Consultant Documents'); * any and all correspondence (whether in hard copy, fax or email form), and any other documents of any nature whatsoever (a) between and among any and all of the following town officials of Brookline: the Town Administrator, the Superintendent of Public Schools . . . members of the Board of Selectmen, members of the School Committee, members of the Advisory Committee, members of the Climate Action Committee, and any staff of the Selectmen's office, the School Department, and any staff or subcommittees of the foregoing listed board committees (collectively, the 'Applicable Brookline Officials'), and (b) between any of the foregoing listed Applicable Brookline Officials and any owner, employee or agent of any consultant of any type related to the Consultant Work (collectively, 'Consultants'); and * all documents produced by such Consultants related in any way, directly or indirectly, to Pine Manor College 2. Copies of votes of any and all public body(ies) authorized to enter into contracts with 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

Patrick J. Ward Page 2 June 12,2018 any and all of the Consultants described in item 1 above evidencing duly authorized approval to enter into such Consultant Documents (for example, without limitation, copies of votes of the Select Board or other authorized board to engage outside legal counsel in connection with any matter related in any manner to Pine Manor College)." In responses dated February 12,2018 and March 7, 201 8, the Town requested extensions of time in order to properly respond to the records request. Attorney Murphy voluntarily agreed to these extensions. Subsequently, the Town provided a response on April 30,2018 , which included portions of the responsive records. The Town indicated that other portions were withheld pursuant to Exemption (d) of the Public Records Law and the common law attorney- client privilege. G. L. c. 4, fj 7(26)(d). Contending that the Town's responses were "grossly insufficient," Attorney Murphy petitioned this office and this appeal, SPR181774, was opened as a result. Tlze 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, 9 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, 5 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, 5 11 (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 7t", The Town's February 12"', March and April 30'" responses In its February 12,2018 response, the Town indicates that pursuant to the Public Records Law, G. L. c. 66, fj 10(b)(vi), it would require an additional fifteen business days to respond to Attorney Murphy's public records request. The Town notes that it would provide a response on March 7,201 8 and indicates that it is determining the cost of production of the records. On March 7,2018 , the Town provided another response indicating its inability to meet this response date due to the magnitude of the request. The Town claims its Information Technology Department has identified over 4000 individual emails and continues to receive

Patrick J. Ward Page 3 June 12,2018 documents from various Town departments. Therefore, the Town requests ". . . an additional thirty (30) business days in order for the Town to properly respond." On the same day, the Town provided another response, which included a record, "the November 14,201 7 vote of Town meeting" and indicates that it would not produce certain records because they are exempt from disclosure under Exemptions (a), (d), (e), and (i) of the Public Records Law and the common law attorney-client privilege. In its April 30,2018 response, the Town provided portions of the responsive records. The Town indicates that it withheld "1. [elmail correspondence between Town Counsel Joslin Murphy andlor Attorney John Leonard and one or more of the individuals identified in the request that is protected from disclosure under the attorney-client privilege; and 2. [elmail correspondence between individuals identified in the request that is exempt from disclosure under the deliberative process exemption of the [Plublic [Rlecords [Llaw [Elxemption (d))." The Town further notes that the Public Schools of Brookline (PSB) would require an additional week to produce requested records within its domain. Exemption (d) The Town claims it withheld responsive records pursuant to Exemption (d) of the Public Records Law. Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being 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 may be based 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. 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, 5 7(26)(d); see also Envtl. Protection Agency v. Mink, 4 10 U.S. 73, 89 (1 973) (purely factual matters used in the development of government policy are subject to disclosure). Burden of specificity, segvegable portions Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 1O (b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends

Patrick J. Ward Page 4 June 12,2018 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . ."); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it 6 intends to withhold. G. L. c. 66, 1O (b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, although the Town claims it withheld emails records, it is unclear if the emails contain categories of records as reflected in Attorney Murphy's request. Therefore, the Town must identify the type of record(s) it has in its possession that it withheld. The Town's responses did not contain the specificity required in a denial of access to public records. Instead, the Town cites Exemption (d) without any further explanation as to the exemption's applicability to the responsive records or portions of the records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records 6 in order to comply with the Public Records Law. G. L. c. 66, 1O (b)(iv). With respect to Exemption (d), although the Town claims it withheld email correspondence between individuals identified in the request, it is unclear how the records fall within Exemption (d). The Town is advised that Exemption (d) "is limited to recommendations on legal and policy matters." Based on its response, it is unclear whether the emails contain recommendations on legal and policy matters to any positions that are being deliberated by the Town. It is additionally uncertain how disclosure of the records would taint the deliberative process. It should also be reiterated that any information contained in these records that is factual in nature is always subject to disclosure as Exemption (d) does not apply to such information. Also, I find the Town has not established how the records at issue are "inter-agency or intra-agency memoranda or letters" as required by Exemption (d). In particular, the Town has not demonstrated that the responsive records or emails were only sent between governmental entities or consultants. See DO1 v. Klamath Water Users Protective Ass'n, 532 U.S. 1,4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 64 1 F.2d 1036, 1040 (1 st Cir. 198 1) (finding that documents from a private party are not "intra- agency" under FOIA exemption 5); SPR951336 Determinations of the Supervisor of Records (August 14, 1995; August 3 1, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). Further, it is unclear how responsive records may be withheld in their entirety. The Town must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt,

Patrick J. Ward Page 5 June 12,2018 segregable portion of a public record is subject to mandatory disclosure. G. L, c. 66, 5 10(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). 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 M~mt.4,4 9 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 (19 93). 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 -Suf folk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Sews., 449 Mass. 609, 61 9 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). 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. Similarly, the Town did not provide any detail or specificity on how the responsive records are protected by the common law attorney-client privilege. The Town 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. In addition, 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, 5 10A(a). PSB records In its April 3othr esponse, the Town indicated that ". . . the PSB requires an additional week to produce the requested email correspondence that is within the PSB's domain." According to Attorney Murphy, as of the date of this appeal, the Town has not provided the responsive records. Consequently, the Town must clarify when it intends to produce the

Patrick J. Ward Page 6 June 12,2018 responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Town did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Town is hereby ordered to review the records, redact where necessary, and provide Attorney Murphy with responsive records, 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. The Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray V Supervisor of Records cc: Susan C. Murphy, Esq.