Andrew Quemere v. City of Chicopee Law Department (SPR 20201524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 15, 2020 SPR20/1524 Christine Pikula, Esq. City of Chicopee, Law Department City Hall, Market Square 17 Springfield Street Chicopee, MA 01013-2776 Dear Attorney Pikula: I have received the petition of Andrew Quemere appealing the response of the City of Chicopee (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 17, 2020, Mr. Quemere requested “[l]ogs of all public records requests submitted to the municipality between 2016 and the present…” Previous Appeal The requested records were the subject of a previous appeal. See SPR20/1412 Determination of the Supervisor of Records (August 28, 2020). In my August 28th determination, I found that the City had provided a supplemental response to Mr. Quemere addressing his appeal on August 19, 2020. Accordingly, I considered the administrative appeal closed. Unsatisfied with the City’s response, Mr. Quemere petitioned this office, and SPR20/1524 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 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

Christine Pikula, Esq. SPR20/1524 Page 2 September 15, 2020 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Current Appeal In its August 19th response, the City indicates the responsive records have “been redacted as it is protected by Attorney-Client Privilege and/or Attorney Work Product for purpose of obtaining legal advice or preparing legal strategy in connection with responding to the public records request…only to the column labeled ‘Comments.’” The City further states “[a]dditionally, I believe exemption (e) would also apply.” Common law attorney-client privilege 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). I find the City did not meet its burden in claiming the attorney-client privilege to redact the records under the requirements of the three part test in Suffolk and the Public Records Law under G. L. c. 66, § 10A(a). Based on the City’s responses, it is unclear whether the privilege to these communications have been waived. Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). Also, as indicated above, pursuant to G. L. c. 66, § l0A(a), I find the City must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed.

Christine Pikula, Esq. SPR20/1524 Page 3 September 15, 2020 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). Only portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. The City explains “[t]he spreadsheet provided is my personal Attorney/Work product. The purpose of the spreadsheet was for my personal use to keep track of dates and types of request so that in the event a similar or duplicate request was made, it would be easier to respond to…[i]t was also to make notes and mental impressions and includes comments and notations regarding discussions I had with employees of other departments, discussions I had with requesters, and steps I took to make legal conclusions used to respond to the requests and determine whether exemptions apply.”

Christine Pikula, Esq. SPR20/1524 Page 4 September 15, 2020 Based on the City’s responses, I find that it has not met its burden to redact the responsive records under Exemption (d). Specifically, the City has not provided sufficient evidence to conclude that the responsive record was prepared in anticipation of litigation as required by DaRosa. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Under Exemption (e), the City explains “[t]hese are my notes I created to assist me in responding to public records requests and are not maintained as part of any file with this department. At the time this document was created, I was the only Attorney who would respond to public records requests. I was not required by my supervisor to keep such log and nor did I alert anyone I was doing so. The document is saved on a shared drive with the law department only, however to my knowledge, no one else has ever accessed these notes because no one else had an occasion to respond to public records request at the time the document was created.” Based on the City’s statement that the document was saved on a shared drive, the City has not met its burden to redact the requested record under Exemption (e).

Christine Pikula, Esq. SPR20/1524 Page 5 September 15, 2020 In camera inspection In order to facilitate a determination as to the applicability of the attorney-client privilege claim made by the City to redact the records, 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. 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 within 10 business days. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere