Karen Spencer v. Gloucester, City of - Legal Department (SPR 20191504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 12, 2019 SPR19/1504 Charles J. Payson, Esq. General Counsel City Hall City of Gloucester - Legal Department Gloucester, MA 01930 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, § 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 Depaiiment 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 appeals The requested records were the subject of previous appeals. See SPR19/1096 Determination of the Supervisor of Records (June 12, 2019) and SPRl 9/1294 Determination of the Supervisor ofrecords (July 12, 2019). In my July 1i 11 determination, I directed the City to provide a privilege log in order to comply with its obligation under the Public Records Law 11 under G. L. c. 66, § lOA(a). Following the July li determination, the City provided a response on July 26, 2019. Unsatisfied with the City's response Ms. Spencer petitioned this office and this appeal, SPRl 9/1504, 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). 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. SPR19/1504 Page 2 August 12, 2019 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records, 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 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). The City's July 26th response In its July 26, 2019 response, the City provides the following log for the two emails that it is withholding from disclosure under the attorney-client privilege: 1) Email, 8/15/18@ 9:05 am from City Attorney Chip Payson to City Council President Paul Lundberg; cc to City Clerk Joanne Senos and City Chief Administrative Officer Jim Destino. Detailed Description/Substance: Written follow-up regarding a request for legal advice made the previous evening on the issue of :fluoride in the City's public water supply as well as a brief discussion of the format of that legal advice.

Charles J. Payson, Esq. SPR19/1504 Page 3 August 12, 2019 2) Email, 8/15/18@ 9:50 am from City Council President Paul Lundberg to City Attorney Chip Payson; cc to City Clerk Joanne Senos; City Chief Administrative Officer Jim Destina and City Council Vice President Steve LeBlanc. Detailed Description/Substance: Written enumerated questions requesting/requiring legal advice as it pertains to the issue of fluoride in the City's public water supply as well as a brief discussion of the format of that legal advice. Citing the Suffolk and Hanover decisions and the policy considerations regarding the attorney-client privilege, the City asserts that" ... the City Council President is entitled to confidential legal advice as it specifically pe1iains to his role as a member of the City Council as well as issues that are before him and the body ...." Whereas the City has provided a privilege log, and indicated that the two email records are confidential communications, received from a client, the City Council's President, for the purpose of obtaining legal advice from the City's attorney regarding the issue of fluoride in the City's public water supply, and the privilege has not been waived, I find the City has met its burden of specificity in applying the attorney-client privilege and may permissibly withhold the responsive email records from disclosure. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Karen Spencer