Liam M. Ryan v. Newton, City of - Law Department (SPR 20211398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2021 SPR21/1398 Maura O’Keefe, Esq. Assistant City Solicitor City of Newton 1000 Commonwealth Avenue Newton, MA 021459 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.” Previous Appeals This request was the subject of previous appeals. See SPR21/0726 Supervisor of Records Determination (April 6, 2021); SPR21/1054 Supervisor of Records Determination (May 7, 2021). In my May 7th determination, I ordered the City to clarify whether the attorney-client privilege relating to a specific memorandum had been waived, and whether the City possesses additional responsive records. The City responded on May 21, 2021, providing additional responsive records in redacted form, reiterating its claim of attorney-client privilege, and asserting that the privilege had not been waived. 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. SPR21/1398 Page 2 June 15, 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 Attorney Ryan’s current appeal concerns one document, “a memorandum of law authored by [the] Deputy City Solicitor, to [a] Newton Councilor . . . and members of the Public Safety and Transportation Committee, pertaining to the authority of the Newton Traffic Council.” In his appeal petition, Attorney Ryan contends that “[l]egal opinions written for purposes of assisting in the making of policy do not enjoy attorney‐client privilege (In re City of Erie, 473 F.3d 413 (2d Cir. 2007)).” Attorney Ryan also contends that “the attorney‐client privilege does not apply to the memo because it is not a communication received by the attorney from a client. It is undisputedly a communication from an attorney, but this type of communication is not subject to the attorney‐client privilege. Rather, it constitutes attorney work product.” (emphasis in original). Attorney Ryan further contends that “there are important reasons why the privilege applies differently to the legislative branch of a municipal government than it would to a private corporation or the executive branch.” 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 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 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.

Maura O’Keefe, Esq. SPR21/1398 Page 3 June 15, 2021 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). The Supreme Judicial Court has differentiated attorney-client privilege from the work product doctrine, explaining that “[t]he work product doctrine . . . limits the discovery of ‘documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney).’” General Elec. Co. v. Dep’t of Envtl. Prot., 429 Mass. 798, 799 n.2 (1999). In this case, there is no indication that the subject memorandum was prepared in anticipation of litigation. In Suffolk, the Supreme Judicial Court held that “the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.” Suffolk, 449 Mass. at 448. In addition, the Court “state[d] explicitly that confidential communications between public officers and employees and governmental entities 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.” Id. at 450. In its April 21st response, the City stated “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 its May 21st response, the City asserts that the privilege has not been waived, contending that: [T]he City has no information that the confidential memo was shared with anyone other than the members of PS&T and staff members of the Clerk’s Office who handle correspondence for the Committee. However, even if the memo were shared with other City employees, the attorney-client privilege would still extend to all City employees whose job functions are implicated by the substance of the memo. Conclusion Accordingly, I find the City has met its burden to withhold the above memorandum under the common law attorney-client privilege. I will now consider this administrative appeal closed. If Attorney Ryan is not satisfied with the resolution of this administrative appeal, 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).

Maura O’Keefe, Esq. SPR21/1398 Page 4 June 15, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Liam M. Ryan, Esq.