Karen Spencer v. Gloucester, City of - City Clerk (SPR 20191096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 12, 2019 SPR19/1096 Joanne M. Senos City Clerk City of Gloucester 9 Dale A venue Gloucester, MA 01930 Dear Ms. Senos: I have received the petition of Karen Spencer appealing the response of the City of Gloucester (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 17, 2019, Ms. Spencer requested "copies of all the correspondence between the Board of Health members and/or the Health Department with the members of the City Council (singly or collectively) and/or the Mayor's office concerning Fluoride, Fluoridation or Karen Spencer between the following two periods: January 20, 2018 - February 20, 2018 [and] August 15, 2018 -April 16 2019." On May 20, 2019, the City provided certain responsive records and withheld portions under the common law attorney-client privilege. Unsatisfied with the response, Ms. Spencer petitioned this office and this appeal, SPRl 9/1096, 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, § 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); 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. 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

Joanne M. Senos SPR19/1096 Page2 June 12, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's May 201 h response In its May 20, 2019 response, the City provided Ms. Spencer with certain responsive records. The City also indicated that upon review of the responsive records it is claiming the attorney-client privilege to withhold" ... documents which provide legal advice to City officials " 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. 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). Based on the City's response, I find the City has not established the existence of an attorney-client relationship under these circumstances. The City did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. The City 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, as noted above, the City must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Consequently, I find the City did not meet its burden of specificity in claiming the attorney-client privilege to withhold records from disclosure under the requirements of the three-

Joanne M. Senos SPR19/1096 Page 3 June 12, 2019 part test in Suffolk and the Public Records Law under G. L. c. 66, § lOA(a). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the City is ordered to provide Ms. Spencer 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: Karen Spencer