David M. Delprete v. Framingham, Town of - City Solicitor (SPR 20182055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2019 SPRlS/2055 Christopher Petrini, Esq. City of Framingham- City Solicitor 150 Concord Street RoomB-37 Framingham, MA O1 701 Dear Attorney Petrini: I have received the petition of David Delprete appealing the response of the City of Framingham' s City Solicitor (City) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Delprete requested copies of "any and all emails [of identified individuals]" and "any and all emails between [identified individuals]." The City provided a response in which it withheld responsive records under Exemption ( d) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(d). Mr. Delprete appealed to this office regarding the City's response and a Determination (SPR18/1783) was provided on December 5, 2018. Based on the Determination, the City provided a supplemental response on December 18, 2018 to Mr. Delprete which he subsequently appealed to this office. 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, § lO(b)(iv); 950 C.M.R. 32.06(3); ~ 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. 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 Petrini, Esq. SPR18/2055 Page 2 January 3, 2019 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. Exemption (d) The City is withholding records under Exemption ( d). 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 always subject to disclosure). The City indicates in the December lih supplemental response to Mr. Delprete that "[r]egarding the additional specificity on the exemption (d) grounds, the legal or policy positions being formulated were the City's responses as employer under G.L. c. 150E and the FPOU CBA to (1) union allegations that the City had a duty to bargain regarding cyber security awareness training and (2) a union grievance regarding discipline of Officer Gatlin." The City goes on to explain that the "emails concern the opinions of the authors and recipients on the response itself, not factual studies or reports on which the development of the policy positions were based. It is a significant part of the deliberative process for senior management officials like the Mayor, COO and Chief to be able to communicate frankly and openly with each other on the formulation of such policy positions." The City's supplemental response does not make clear that the responsive records the City withheld are "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" as required by Exemption ( d). See G. L. c. 66, § 1O (b )(iv); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The City does not explain how the emails and communications would involve legal or policy concerns that would be developed by the City. 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 G. L. c. 4, §7 (26)(d).

Christopher Petrini, Esq. SPRlS/2055 Page 3 January 3, 2019 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); 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). Disclosing attorney client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Attorney-client privilege For the attorney-client privilege to apply, a records custodian must establish the existence of an attorney-client relationship and clarify whether 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, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9 (2007). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 449 Mass, at 460. 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). In the City's December 18th response to Mr. Delprete, the City provided a spreadsheet with an index citing attorney-client privilege for the withholding of emails related to conversations between the City's attorney and City employees. The City lists the records withheld or redacted and lists the individuals involved in the communication. Upon review of the City's spreadsheet, the names of the author, recipients and dates of the records are evident. The City may elect to provide this office with umedacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide this office a response with further information relating to the grounds upon which the attorney client privilege is being claimed as contemplated in G. L. c. 66, § lOA(a). In particular, the City must establish the existence of an attorney-client relationship and clarify whether 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, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived.

Christopher Petrini, Esq. SPR18/2055 Page 4 January 3, 2019 Suffolk Constr. Co., 449 Mass. at 450 n.9. The City has not provided a description of the contents of each email being withheld or explained how the emails are exempt from disclosure in their entirety. The City has not met its burden to explain how the emails are exempt in their entirety from disclosure under the attorney-client privilege or Exemption ( d). Conclusion Accordingly, the City is ordered to provide a response consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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