Liam M. Ryan v. Newton, City of - Law Department (SPR 20210726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2021 SPR21/0726 Greta McConnell Law Department City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Ms. McConnell: I have received the petition of Attorney Liam M. Ryan 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). On March 7, 2021, Attorney Ryan requested “all emails and communications between the City's law department, specifically [a certain individual], and the Public Safety and Transportation Committee, in particular [the] Chairperson . . . related to [a specific] Traffic Council appeal.” The City responded on March 9, 2021, indicating “[t]he documents requested contain information subject to an attorney client privilege and are being withheld in accordance with Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007).” Unsatisfied with the City’s response, Attorney Ryan appealed, and this case was opened as a result. Current Appeal In his appeal petition, Attorney Ryan explains that he is seeking “public disclosure of the legal opinion issued by the City of Newton’s law department regarding the legality of certain actions undertaken by the City’s Traffic Council as relates to the creation of ‘parking districts’ within the city.” He further explains that he “was advised by the City Council (Public Safety and Transportation Committee) that the city’s legal department had opined on the legality of the Traffic Council’s actions but that the opinion was privileged and would not be made public.” He argues there is “no reason why a legal opinion should be privileged. It presumably contains a legal analysis and not facts which could be harmful to the city’s legal interests.” Further, he argues that he “should be able to obtain information about the city’s legal rationale for its actions.” 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

Greta McConnell SPR21/0726 Page 2 April 6, 2021 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. The City’s March 9th and March 31st Response In its March 9th response and in an email to this office on March 31st, the City indicated it was withholding responsive records pursuant to the attorney-client privilege. 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 (2007); 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, § 10A(a). In an email to this office on March 31, 2021, the City explained: As succinctly stated in Suffolk Construction, “confidential communications between public officers and their legal counsel undertaken for the purpose of obtaining legal

Greta McConnell SPR21/0726 Page 3 April 6, 2021 advice or assistance are protected under the normal rules of the attorney-client privilege.” 429 Mass. at 449. Mr. Ryan seeks privileged communications made by an attorney for the City of Newton to a City Department for the purpose of providing legal advice. Any such document is not subject to disclosure under the public records laws and the plain language of Suffolk Construction. Although the City has provided a description of the grounds upon which it claims the attorney-client privilege, it must also provide Attorney Ryan with a detailed description of the records being withheld, the names of the author and recipients, the date, and the substance of such records. G. L. c. 66, § 10A(a). Conclusion Accordingly, the City is ordered to provide Attorney Ryan with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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, · ' ' . I - . . - ~ - . Rebecca S. Murray Supervisor of Records cc: Liam M. Ryan, Esq. Maura E. O'Keefe, Esq., Assistant City Solicitor