Paul DeMeo v. Gardner, City of - Law Department (SPR 20200122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen>isor of Records January 31, 2020 SPR20/0122 John M. Flick, Esq. City of Gardner Law Department 144 Central Street, Suite 201 Gardner, MA 01440 Dear Attorney Flick: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 8, 2020, Mr. DeMeo requested, in part, communications between the City Law Department, attorney for the City's law office and Gardner City Council. · Tlte 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, § 1O (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). · · · The City's January 1711 Response In its January 17, 2020 response, the City produced emails with redactions and cited the attorney-client privilege in support of the redactions. Unsatisfied with the City's response, Mr. DeMeo appealed and SPR20/0122 was opened as a result. Common law attorney-client privilege The City claimed that the redacted 2019 emails are attorney-client communications, protected entirely under the common law attorney-client privilege. 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

John M. Flick, Esq. SPR20/0122 Page 2 January 31, 2020 The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk, 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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 ih 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. 11 G. L. c. 66, § lOA(a). Based upon the City's response, I find the City has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. The City must identify the records, categories of records or portions of records in its possession that are responsive to the request and those which it intends to withhold. See G. L. c. 66, § lO(d)(iv); 950 C.M.R. 32.06(3)(c )(4 ). Further, the City must provide an index comprised of a detailed description of each withheld 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). Conclusion Accordingly, the City is ordered to provide Mr. DeMeo with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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.

John M. Flick, Esq. SPR20/0122 Page 3 January 31, 2020 Sincerely, ~~ Supervisor of Records cc: Paul DeMeo