Michael Durham v. Medford, City of (SPR 20212017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2021 SPR21/2017 Kimberly M. Scanlon, Esq. City Solicitor Records Access Officer City of Medford 85 George P. Hassett Drive Medford, MA 02155 Dear Attorney Scanlon: I have received the petition of Michael Durham appealing the response of the City of Medford (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 26, 2021, Mr. Durham requested seven categories of records relating to the compensation paid for two named individuals for acting as municipal appeals hearings officers. The City responded on August 9, 2021, providing a number of responsive records, indicating it did not have others, and claiming to withhold one record in its entirety pursuant to the attorney- client privilege. Unsatisfied with the City’s response, Mr. Durham 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). 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 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

Kimberly M. Scanlon, Esq. SPR21/2017 Page 2 August 19, 2021 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. Current Appeal In his appeal petition, Mr. Durham states the following: The Public Records Officer responded to Requests 1, 3, 5 and 6 with the statement ‘After a comprehensive search, see attached’ This response is inadequate since there is no indication given as to which Request the ‘attached’ documents are responsive. They are not grouped, labelled, collated, designated or marked as to which documents are responsive to which request. As the requestor, [Mr. Durham is] left without direction and forced to speculate as to which document responds to which request. Mr. Durham also challenges the City’s claim of attorney-client privilege, contending that “the Finance Director’s Memorandum was generated in response to an investigation that [Mr. Durham] requested as early as September 2020. [Mr. Durham] had requested an investigation of the City having failed to pay [him] for services rendered as a hearing officer and having paid another employee . . . the former hearing officer instead.” The City’s August 9th Response In its August 9, 2021 response, the City provided a number of responsive records, and claimed to withhold one record pursuant to the 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 (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 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).

Kimberly M. Scanlon, Esq. SPR21/2017 Page 3 August 19, 2021 Citing the attorney-client privilege, the City states that “the City has withheld the following record: Memorandum dated October 22, 2020 addressed to the City Solicitor from the City’s Finance Director RE: ‘Confidential’ (payroll/stipend matter).” While the City has provided the names of the author and recipient, the date, and the substance of the record in question, the City has not provided an explanation of the grounds upon which the attorney-client privilege is being claimed. The City must clarify this. No Duty to Answer Questions or Conduct Research In this case, Mr. Durham contends that the records he received “are not grouped, labelled, collated, designated or marked as to which documents are responsive to which request.” Please be advised that, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, the City is ordered to provide Mr. Durham 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 the response to this office at pre@sec.state.ma.us. Sincerely, , - . , - . . ,·.. -·' ..· ~ Rebecca S. Murray Supervisor of Records cc: Michael Durham