Amy Friedman v. Malden, City of (SPR 20211318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2021 SPR21/1292; SPR21/1293; SPR21/1308; SPR21/1312; SPR21/1316; SPR21/1318 Karen Anderson Clerk Department City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Anderson: I have received the petitions of Bruce Friedman appealing the response of the City of Malden (City) to his requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Friedman submitted ten public records requests, dated March 11, 2021, seeking various email correspondences between specified City employees during a certain time period. Previous Appeals These requests were the subject of previous appeals. See SPR21/0761; SPR21/0764; SPR21/0765 - SPR21/0767; SPR21/0769; Supervisor of Records Determination (March 30, 2021); SPR21/0827 - SPR21/0829; SPR21/0831 - SPR21/0833 Supervisor of Records Determination (April 14, 2021). In my March 14th determination, I found it was unclear whether the City complied with G. L. c. 66, § 10(e). The City was ordered to provide Mr. Friedman with a response in a manner consistent with the Public Records Law and its Regulations. The City provided said response on May 24, 2021, which included responsive records redacted pursuant to the attorney-client privilege. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and appeals, SPR21/1292, SPR21/1293, SPR21/1308, SPR21/1312, SPR21/1316, and SPR21/1318 were 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 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

Greg Lucey SPR21/1292; SPR21/1293; SPR21/1308; SPR21/1312 Page 2 SPR21/1316; SPR21/1318 June 8, 2021 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. Current Appeal In his appeal, Mr. Friedman states “[t]he redacted emails do not provide the specifically requested email header information.” The City provided a response on May 24, 2021, stating “[a]ll communications made in redacted documents were made in confidence during the course of city employees requesting or receiving legal advice from the City Solicitor, acting in her capacity as attorney for the city. The privilege has not been waived. Finally, the redaction log included with the response provides, in general terms, the subject matter of the redacted documents – in one case, the subject matter was the open meeting law; in the remaining three documents, the subject was public records requests.” Subsequent to the opening of this appeal the City provided an additional response reiterating “[t]he communication made in redacted document was made in confidence during the course of city employees requesting or receiving legal advice from the City Solicitor, acting in her capacity as attorney for the city. The privilege has not been waived. Finally, in accordance with 950CMR32.06(3)(D), the redaction log included with each response provides, in general terms, the subject matter of the redacted document.” 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). 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

Greg Lucey SPR21/1292; SPR21/1293; SPR21/1308; SPR21/1312 Page 2 SPR21/1316; SPR21/1318 June 8, 2021 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 its response, the City provides the date, author(s) and recipients, the substance of the records, as well as the grounds for which the attorney-client privilege is claimed. The City explains “[t]he communication made in redacted document was made in confidence during the course of city employees requesting or receiving legal advice from the City Solicitor…” Where the City indicates the request includes communications between City staff and City legal counsel that implicate the attorney-client privilege, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the City has met its burden in responding to the requests. Conclusion Accordingly, I will consider these administrative appeals closed. If Mr. Friedman is not satisfied with the resolution of these administrative appeals, please be advised that 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 applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman Greg Lucey Anthony Rodrigues