Allison Jarmanning v. Boston, City of - Public Library (SPR 20181999)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 21, 2018 SPRlS/1999 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Boston Public Library (Library) to a request'for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on August 2, 2018, Ms. Jarmanning requested "[a]ny records detailing why three facilities managers are on leave [and] [a]ny police reports in the possession of the library, including those filed between June 1, 2018 and present." Previous appeals This request was the subject of previous appeals. See SPR18/1245 Determination of the Supervisor of Records (August 31, 2018) and SPR18/1560 Determination of the Supervisor of ih Records (November 7, 2018). In my November determination, I found that the Library had not met its burden to withhold responsive records under the common law attorney-client privilege. Accordingly, I ordered the Library to provide Ms. Jarmanning with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. ih Following the November determination, in a response dated November 27, 2018, the Library provided additional information in support of its attorney-client privilege claim. Unsatisfied with the Library's response, Ms. Jarmanning petitioned this office and this appeal, SPRl 8/1999, 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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. SPR18/1999 Page 2 December 21, 2018 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, § 1 O(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Library's November 21h response In its November 27, 2018 response, the Library indicates "[t]he spreadsheet contains information between an attorney and client related to the client's search for legal advice from the attorney in his capacity as such." The Library explains that" ... the spreadsheet contains a list of information related to the individuals subject to the investigation. It includes information provided to the attorneys related to the investigation and this information was provided to the attorneys 'in confidence.'" The Library further explains that "[t]he information is specifically related to the advice provided by the attorneys in the investigative report." The Library indicates that the privilege to these communications has not been waived and the client is the "City of Boston, including in this i1istance the Boston Public Library." Common law attorney-client privilege 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. Under 950 C.M.R. 32.06(3)(d), where a record has been withheld on the basis of a claim of the attorney-client privilege, the records access officer must provide a detailed description of the record, including names of the author and recipients, and in general terms, the subject of the matter of the withheld information.

Shawn A. Williams, Esq. SPR18/1999 Page3 December 21, 2018 Based on the Library's response it seems that additional information could be provided to indicate how the privilege applies to the withheld records in Ms. Jarmanning's request. While the Library provided an explanation as to why these records were withheld, the Library has not provided a privilege log including the names of the author and recipient, the date, and the substance of the record. Consequently, I find the Library has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the record. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Library is ordered to provide Ms. Jarmanning 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: Allison Jarmanning