Gustavo Ribeiro v. Newton, City of - City Clerk (SPR 20200632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2020 SPR20/0632 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, § 10A; 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….” Previous Appeal The requested records have been the subject of a previous appeal. See SPR 20/0296 Determination of the Supervisor of Records (March 2, 2020). In my March 2nd determination, I found it was unclear what records the City intended to withhold pursuant to the attorney-client privilege, and ordered the City to provide a response clarifying this matter. The City provided a response on March 13, 2020, providing a privilege log identifying the emails it is withholding pursuant to the attorney-client privilege. Unsatisfied with this response, Attorney Ribeiro petitioned this office and this appeal, SPR 20/0632, 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, § 10A(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

David A. Olson SPR20/0632 Page 2 April 6, 2020 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, § 10(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 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 Court (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 ---------------------------

David A. Olson SPR20/0632 Page 3 April 6, 2020 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 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, § 10A(a). In his March 24, 2020 appeal petition, Attorney Ribeiro argues that he has “identified five emails that were improperly designated as privileged….that include Kenneth Kimmel as a sender or recipient.” Attorney Ribeiro argues that “Mr. Kimmel is a private citizen,” and communications involving him fall outside the protections of the attorney-client privilege. In a March 19, 2020 email, the City states that “Kenneth Kimmel was a member of the Webster Woods Advisory Panel. This panel was formed by Mayor Ruthanne Fuller for the specific purpose of advising her on the protection of Webster Woods.” The City argues that “[t]herefore, Mr. Kimmel was acting as a City agent, and any communications between Mr. Kimmel and the City Solicitor are protected from disclosure by the attorney-client privilege.” Based on the City’s responses, I find it has met its burden in responding to this request. The City has provided a privilege log of withheld emails, as required by the Legislature in G. L. c. 66, § 10A(a). In subsequent emails, the City has indicated that the individual in question was acting under its authority as an advisor on the Webster Woods Advisory Panel. Conclusion Accordingly, whereas I find the City has met its burden in responding to this request, I will consider this administrative appeal closed. If Attorney Ribeiro is not satisfied with the resolution of this administrative appeal, please be advised this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)(pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Gustavo Ribeiro, Esq.