Brian DeLacey v. Malden City Solicitor (SPR 20201200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 31, 2020 SPR20/1200 Kenneth J. Rossetti, Esq. Assistant City Solicitor City of Malden Legal Department 215 Pleasant Street, 4th Floor Malden, MA 02148 Dear Attorney Rossetti: I have received the petition of Brian DeLacey appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 1, 2020, Mr. DeLacey requested “… electronic mail (text and attachments) from any Malden Legal Department staff (Clerk D. Anthony, Attorneys K. Fallon, J. McNaught or K. Rossetti) to any quorum – or serial communication reaching a quorum– of the City Council or Community Preservation Committee (CPC) in the timeframe of 1/1/2020 to 7/1/2020.” The City responded July 16, 2020, indicating the City was withholding the responsive records “based upon the attorney-client privilege…” Unsatisfied with the City’s response, Mr. DeLacey petitioned this office, and SPR20/1200 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). 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); 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. 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

Kenneth J. Rossetti, Esq. SPR20/1200 Page 2 July 31, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 In its July 16th response, the City indicates it “declines to produce documents responsive to your request, with the sole exception of an email attachment of 2-3-2020 that was previously emailed to you on that date…[t]he City declines to produce the subject documents based upon the attorney-client privilege…” The City also provided a privilege log that “summarizes the withheld material…” The City explains “in each instance, each withheld document reflects legal advice rendered by the City’s legal counsel; and the only communicants in each instance are Legal Department staff and City employees to whom the legal advice was furnished.” 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 (2017); see also Hanover Ins. Co. v. Rapa & 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 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, § 10A(a). Subsequent to the opening of this appeal, the City emailed this office on July 28, 2020, indicating “the City is prepared, upon written request of the Supervisor of Records, to [deliver] the withheld responsive documents to your office for a confidential, in camera review, subject to MGL c. 66, § 10A(a).” In camera inspection In order to facilitate a determination as to the applicability of the attorney-client privilege claim made by the City to withhold the emails, the City must provide this office with an un- redacted copy the responsive records for an in camera review without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record.

Kenneth J. Rossetti, Esq. SPR20/1200 Page 3 July 31, 2020 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Conclusion Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey Greg Lucey