Evelyn Tobin v. Methuen, City of (SPR 20211513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2021 SPR21/1513 John J. Wilson, Jr., Esq. City Clerk City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Wilson, Jr.: I have received the petition of Evelyn Tobin appealing the response of the City of Methuen (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 7, 2021, Ms. Tobin requested, “[f]or the years 2018, 2019, 2020 and 2021, copies of any and all reports provided by the Solicitor's Office to the City Council regarding pending and settled lawsuits involving the City of Methuen, as required by the City Charter.” The City provided a response to Ms. Tobin on May 24, 2021. Unsatisfied with the City’s response, Ms. Tobin petitioned this office and this appeal, SPR21/1513, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § 10(b)(iv). 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. 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

John J. Wilson, Jr., Esq. SPR21/1513 Page 2 July 1, 2021 The City’s May 24th response In its May 24, 2021 response, the City stated the requested records constituted “communications between the City's legal department and the City Council City and are thus protected under the attorney/client privilege. Therefore, the City is entitled to decline producing documentation that is protected from disclosure under the attorney-client privilege and work product doctrine. See Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 450-52 (2007).” 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). The City is advised that G. L. c. 66, § 10A(a) requires that a records custodian 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. The City must provide a privilege log and further explain how the above cited communication constitutes attorney-client privileged communication claimed in the May 24th response. Conclusion Accordingly, City is ordered to provide Ms. Tobin with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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.

John J. Wilson, Jr., Esq. SPR21/1513 Page 3 July 1, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Evelyn Tobin Kenneth J. Rossetti, Esq.