Liam M. Ryan v. Newton, City of - Law Department (SPR 20211054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2021 SPR21/1054 Maura O’Keefe, Esq. Assistant City Solicitor City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Attorney O’Keefe: 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).” Previous Appeal This request was the subject of a previous appeal. See SPR21/0726 Supervisor of Records Determination (April 6, 2021). In my April 6th determination, I ordered the City to provide Attorney Ryan with a response to his request. The City provided a supplemental response on April 21, 2021, again asserting attorney-client privilege, and describing the records withheld. Unsatisfied with the City’s response, Attorney Ryan appealed, and this case 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

Maura O’Keefe, Esq. SPR21/1054 Page 2 May 7, 2021 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. Current Appeal In his appeal petition Attorney Ryan states that “the City has provided no legal justification for the application of the privilege to the document at issue. Specifically, the City does not contend that (i) that the communication was received from a client in the course of the client’s search for legal advice from the attorney in her capacity as such, (ii) that the communication was made in confidence, or (iii) that the privilege has not been waived.” Attorney Ryan further contends: The legal opinion is obviously not a communication to an attorney in her capacity as such, rather it’s a communication from an attorney. And it was disseminated widely within the city government; it was not made confidentially as between the individual seeking advice and the attorney. Further, it relates to the legal authority of a body – the Traffic Council – separate from the Committee to which it is addressed – the Public Safety and Transportation Committee of the City Council. As such, the privilege should not apply and the City certainly has not satisfied its burden of proving proper application of the privilege. The City’s March 31st and April 21st Responses In its original March 9, 2021 response to Attorney Ryan, in its March 31, 2021 email to this office, and in its April 21, 2021 supplemental response, the City asserts it is withholding responsive records under the attorney-client privilege. 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 reports 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

Maura O’Keefe, Esq. SPR21/1054 Page 3 May 7, 2021 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 explains: As succinctly stated in Suffolk Construction, “confidential communications between public officers and their legal counsel undertaken for the purpose of obtaining legal 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. In its April 21, 2021 response, “the City further offers that the requested document is a memorandum of law dated February 21, 2021, authored by Newton Deputy City Solicitor Marie Lawlor to Newton Councilor Andreae Downs and members of the Public Safety & Transportation Committee, pertaining to the authority of the Newton Traffic Council.” In his appeal petition, Attorney Ryan states that the memorandum “was disseminated widely within the city government.” Based on the City’s response, it is unclear whether the claimed privilege to this communication has 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). The City must clarify this. Additional Records in Existence Further, it is unclear whether the City possesses additional records responsive to Attorney Ryan’s request. While Attorney Ryan requested “all emails and communications between the City’s law department” and certain individuals “related to [a specific] Traffic Council appeal,” the City has only claimed attorney-client privilege for one memorandum of law. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, §

Maura O’Keefe, Esq. SPR21/1054 Page 4 May 7, 2021 10(a)(ii). The City must indicate whether it possesses additional records responsive to Attorney Ryan’s request. 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, Rebecca S. Murray Supervisor of Records cc: Liam M. Ryan, Esq.