Paul DeMeo v. Gardner, City of - Law Department (SPR 20200446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 13, 2020 SPR20/0446 Alan L. Agnelli, Esq. City Clerk City of Gardner 95 Pleasant Street Gardner, MA O1 440 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 communications between the City Law Department, the attorney for the City's law office and the City Council. Previous appeals This request was the subject of a previous appeals. See SPR20/0122 Determination of the Supervisor of Records (January 31, 2020); SPR20/0291 Determination of the Supervisor of Records (February 27, 2020). On February 13, 2020, the City provided supplemental emails along with a privilege index to Mr. DeMeo. Unsatisfied with the City's response, Mr. DeMeo petitioned this office and this appeal SPR20/0446 was opened as a result. 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, § 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). 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

Alan L. Agnelli SPR20/0446 Page 2 March 13, 2020 The City's February 131 Response " In its February 13th response, the City produced provided supplemental emails with redactions along with a privilege index and cited attorney-client privilege in support of the redactions. Common law attorney-client privilege The City has claimed that the redacted 2019 emails are attorney-client communications and protected entirely under the common law attorney-client privilege. 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 rep01is 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 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). In its February 13th response, the City sent Mr. DeMeo 72 pages of emails and a privilege log summarizing the 72 pages of emails. The privilege log detailed the page numbers, date, author, primary and additional recipients, status/content and the privilege status. The City has claimed that some of the 2019 emails have been redacted and are attorney-client communications protected entirely under the common law attorney-client privilege. In my February 2th determination, I asked Mr. DeMeo to clarify his appeal. In response, Mr. DeMeo stated in his March 2nd appeal that his request was for counsel from the City to

Alan L. Agnelli SPR20/0446 Page 3 March 13, 2020 release all communications between the City Council and himself and requested "enforcement of [his] 'Public Records' request." Mr. DeMeo has received responsive emails along with a privilege log in support of the redactions pursuant to the attorney-client privilege. I find the City has established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. See Suffolk, 449 Mass. at 450 n.9; See G. L. c. 66, § lO(d)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. DeMeo is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul DeMeo