David M. Delprete v. Framingham, Town of - City Solicitor (SPR 20181783)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 5, 2018 SPRlS/1783 Christopher Brown City of Framingham 150 Concord Street, Room B-37 Framingham, MA 01701 Dear Mr. Brown: I have received the petition of David Delprete appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Delprete requested "any and all emails [identified individuals]" and "any and all emails between [identified individuals]." The City responded to his request claiming some responsive emails were being withheld pursuant to Exemption ( d) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(d). 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, § 1O (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. Exemption (d) In its response, the City indicates that "[t]he emails withheld under exemption (d) concern discussions on the City's responses to grievances from the FPOU and the FPSOA, with some of the email discussions including counsel." 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

Christopher Brown SPR18/1783 Page2 December 5, 2018 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 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). The City's written response does not explain with specificity to Mr. Delprete what legal or policy positions these emails are related to, nor does it explain how their disclosure would taint the deliberative process. As a result, the City has not met its burden to explain how the emails are exempt from disclosure in their entirety pursuant to Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a ). The City is reminded that "reasonably completed factual studies or reports on which the development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Common law attorney-client privilege In its response, the City indicates that "[t]he emails withheld based on the attorney-client privilege, in addition to the emails regarding the responses to FPOU and FPSOA grievances, also concern discussions between City officials and counsel regarding the proposed contract settlement with the FPOU and the pending JLMC proceeding, which emails were sent in confidence for the purpose of seeking or obtaining legal advice, the privilege for which has not been waived by the Mayor, as holder of the attorney-client privilege for the City of Framingham." 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

Christopher Brown SPRlS/1783 Page 3 December 5, 2018 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. Based on the City's response it seems that additional information could be provided to indicate how the privilege applies to the withheld records. While the City does explain how the records are communications received during the course of the client's search for legal advice, confirmed that the privilege has not been waived, it has not identified the specific records that it believes fall into the attorney client privilege. See Suffolk, 449 Mass. at 450 n.9. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460. Specifically, the City has not provided a privilege log including the names of the author and recipient, the date, the substance of each record, and whether attorney-client privilege has been waived. See G. L. c. 66, 1O A( a); 950 C.M.R. 32.06(3)(d ). Consequently, I find that the City has not met its burden of specificity in applying the attorney-client privilege to withhold the records. Order Accordingly, the City is ordered to provide Mr. Delprete 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: David Delprete