Gustavo Ribeiro v. City of Newton -- City Clerk (SPR 20200296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2020 SPR20/0296 David A. Olson Newton City Clerk 1000 Commonwealth Ave. City Hall, First Floor Newton, Ma 02459 Dear Mr. Olson: I have received the petition of Attorney Gustavo Ribeiro appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ribeiro requested "all documents, and documents reflecting communications, referring, relating to and concerning the 'community donation toward acquisition cost (pro tanto award)' in the amount of $200,000 referenced in the Newton Community Preservation Committee's Funding Recommendation ... as a source of funds for the project identified as the Hammond Pond Parkway - Land Acquisition .... " The City provided a response on January 2, 2020, providing a number of responsive records. In a January 29, 2020 email, the City indicated that it is withholding additional records pursuant to the common law attorney-client privilege. Unsatisfied with this response, Attorney Ribeiro petitioned this office and this appeal, SPR 20/0296, 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, § 1O (b )(iv)(written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

David A. Olson SPR20/0296 Page 2 May 2, 2020 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). Current Appeal In its January 29th response, the City states that "[a]ll documents that have been withheld or redacted contain information that is subject to attorney client privilege." Attorney-client privilege There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Comi (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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). Pursuant to the Public Records Law, in assessing whether a records custodian has

David A. Olson SPR20/0296 Page 3 May 2, 2020 properly withheld records based on the claim of attorney-client privilege the Supervisor "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, § 1O A(a). Based on the City's response, I find that it has not met its burden of specificity in claiming the common law attorney-client privilege to withhold responsive records under Suffolk and the Public Records Law. See Suffolk, 449 Mass. at 450; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). The City has provided one record in redacted form, and indicated that it is withholding others pursuant to the attorney-client privilege. The City must identify the specific records for which it claims the attorney-client privilege, including the names of the author and recipients, date, substance of the record, and grounds upon which it claims the attorney-client privilege, for each record or category of records it intends to withhold. See G. L. c. 66, § 1O A(a). Conclusion Accordingly, the City is ordered to provide Attorney Ribeiro with a response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Gustavo Ribeiro, Esq.