Jeff Brown v. Gloucester, City of - City Clerk (SPR 20181541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5,201 8 SPRl811541 Joanne M. Senos City of Gloucester 9 Dale Avenue Gloucester, MA 0 1930 Dear Ms. Senos: I have received the petition of Jeff Brown appealing the response of the City of Gloucester (City) to a request for public records. G. L, c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 12, 2018, Mr. Brown requested "any and all information pertaining to an email that the city solicitor sent to the city council indicating the that [sic] it is their responsibility to hold public hearings regarding National Register of Historic Places district nominations (i.e., Dogtown)." On October 18,2018, the City denied his request claiming the responsive record is protected by the attorney-client privilege. 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, 5 1O A(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, fj 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. One Ashburton Place, Room 1719 , Boston, Massachusetts 0210 8 (6 17) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Joanne M. Senos SPR1811541 Page 2 November 5,20 18 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 Mqmt., 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." 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 (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. -S-, ee 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. On October 23, 201 8 and November 5,2018 , the City provided additional responses to this office in support of its attorney-client privilege claim. In its October 23rdr esponse, the City indicates that "[tlhe single email in question was addressed to the following people after a request for a legal interpretation of a statute (chapter 40, sec. 8D). . ." The City lists five City employees as the recipients of the email. The City indicates its general counsel represents these individuals "as well as the entire government of the City" and provided legal advice to these individuals; specifically he "provided them with [his] interpretation of a statute that required certain actions by the City government." The City confirms that "[nlone of these people waived the privilege." In its November 5thr esponse, the City indicates that "[tlhe date of the email [it] want[s] to withhold is October 1l ,201 8." Whereas the City provided "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," I find the City has established the existence of an attorney-client relationship under these circumstances. G. L. c. 66, § 10A(a). Conclusion Accordingly, whereas the City has met its burden to withhold the responsive record under the attorney-client privilege, I will now consider this administrative appeal closed. If Mr. Brown 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, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Joanne M. Senos Page 3 November 5,20 18 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeff Brown