Timothy R. Callinan v. Revere, City of - Police Department (SPR 20211632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 19, 2021 SPR21/1632 Captain Michelle Mangino Records Access Officer (RAO) Bureau of Administration, Commander Revere Police Department 400 Revere Beach Blvd Revere, MA 02151 Dear Captain Mangino: I have received the petition of Timothy Callinan, Esq. appealing the response of the Revere Police Department (Department) to a request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On April 5, 2021, Attorney Callinan requested the following records: 1. All documents, reports, whether internal affairs or incidents, including copies of any and all emails, text messages, written messages, and other writings, regarding the Revere Police Department’s issuance of “Personnel Order No. P2020-30;” 2. All documentation related to the Chief’s decision to issue “Personnel Order No. P2020-30” that states, “Identified officer’s suspension on 08/12/20 has been amended. Identified officer did not violate the following Department Rule and Regulation contained in Policy #301: Article III, Section C, Subsection 7, Truthfulness.” The Department provided a response on April 19, 2021. Unsatisfied with the Department’s response, Attorney Callinan petitioned this office and this appeal, SPR21/1632, 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

Captain Michelle Mangino, RAO SPR21/1632 Page 2 July 19, 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. 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. The Department’s April 19th Response In its April 19, 2021 response, the Department referred to requests 1 & 2 and withheld responsive requested records citing 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 its April 19th response, the Department claimed attorney-client privilege for the withholding of documents in requests #1 and #2. The withheld documents mentioned are (4) email exchanges between the City of Revere’s Police Chief and the Department’s legal counsel. The Department explained “[t]hese emails are confidential communications.” The Department 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 Department must provide a

Captain Michelle Mangino, RAO SPR21/1632 Page 3 July 19, 2021 privilege log and further explain how the email communication constitutes attorney-client privileged communication and the substance of the emails that are being withheld. Conclusion Accordingly, the Department is ordered to provide Attorney Callinan 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy R. Callinan, Esq. Matthew Buckley, Esq.