Karen Spencer v. Gloucester, City of - Legal Department (SPR 20191294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supe111isor of Records July 12, 2019 SPR19/1294 Charles J. Payson, Esq. General Counsel City Hall City of Gloucester - Legal Department Gloucester, MA O1 93 0 Dear Attorney Payson: 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, § 1O A; 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." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1096 11 Determination of the Supervisor of Records (June 12, 2019). In my June li determination, I found that the City had not met its burden to withhold portions of the responsive records from disclosure pursuant to the attorney-client privilege. Accordingly, I ordered the City to provide Ms. Spencer with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the June 12111 determination, the City provided a response on June 26, 2019, providing additional information regarding its attorney client privilege claim. Unsatisfied with the response, Ms. Spencer petitioned this office and this · appeal, SPRl 9/1294, 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 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

Charles J. Payson, Esq. SPR19/1294 Page2 July 12, 2019 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. Ifthere 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. Tlte City's June 261 response " In its June 26, 2019 response, the City asserts that" ... (1) the withheld communications were communications between [the Legal Department] and the City Council President, a client; (2) it is the opinion of this office that all communications between this office and its clients are confidential and protected by attorney-client privilege; and (3) the client, in this case the City Council President, has not waived the attorney-client privilege as it pertains to the withheld documents." The City reiterates that" ... the documents that were withheld are communications between [the City's Legal Department] and the City Council President regarding a request for legal advice on the fluoridation issue." The City asserts that whereas" ... that privilege has not been waived ... it must be preserved." Commo11 law <tftomey-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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 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). 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).

Charles J. Payson, Esq. SPR19/1294 Page 3 July 12, 2019 In my June 12'" determination, apart from directing the City to 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, I also directed the City to provide a privilege log in accordance with the Public Records Law. See SPRl 9/1096. Where the City did not provide a privilege log in its June 261 response, I find the City did not meet its burden of specificity in claiming the " attorney-client privilege to withhold the email records from disclosure. The City is advised to provide the log in order to comply with its obligation under the Public Records Law under G. L. c. 66, § lOA(a). 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. Co11clusio11 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