Elizabeth Dray v. Arlington Housing Authority (SPR 20212069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2021 SPR21/2069 John Nagle Arlington Housing Authority 4 Winslow Street Arlington, MA 02474 Dear Mr. Nagle: I have received the petition of Elizabeth Dray appealing the response of the Arlington Housing Authority (Authority/AHA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2021, Ms. Dray requested “copies of all emails from all housing authority board members and [a named attorney] between the dates of 3/31/21 to 4/19/21 that contain [specific] key words . . .” Previous petition This request was the subject of a previous fee and time petition. See SPR21/1483 Determination of the Supervisor of Records (June 17, 2021). In my June 17th determination, I found that the Authority had not met its burden to establish good cause to justify approval for assessing the proposed fee or an extension of time to respond to the request. Subsequently, the Authority provided a response on June 30, 2021, denying access to the responsive records. Unsatisfied with the Authority’s response, Ms. Dray petitioned this office and this appeal, SPR21/2069, 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 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 Nagle SPR21/2069 Page 2 August 30, 2021 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 Authority’s June 30th response In its June 30, 2021 response, the Authority states it “. . . does not maintain records of private emails or private email servers of AHA Board Members, which are not paid for, or required, or approved as an official vehicle of AHA business, and which are strictly the private and personal property of each Board member. These materials are located on the private emails of Board Members and are prepared and maintained by each individual Member without any authorization, supervision, or control by the AHA. They are not authorized, monitored, or maintained, and do not exist as public records.” The Authority further asserts “. . . with regard to emails from AHA Board Members to [named attorney], even if they were maintained or existed, (which they are not), such records would be considered outside of the scope of public records and exempt relative to the items requested by Ms. Dray, in accordance with our cited 2007 Suffolk Construction case, as a privileged confidential communication with AHA legal counsel. These emails were all personal to the Board members, not maintained as records by the governmental unit, nor were they ever a matter subject to consideration, debate, or vote by the Board. Therefore, the AHA does not maintain, record, or hold, as public records, any documents that Ms. Dray has requested that are available as public records. . . .” Public records; public employees/officials The Authority is reminded that the definition of a “public record” in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes “public records.” Further, public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985).

John Nagle SPR21/2069 Page 3 August 30, 2021 Records Management Please be aware safeguards must be instituted by the Authority to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Authority may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. Office of the Sec’y of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2020); see also G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Based on the Authority’s response, it is unclear why the Authority cannot retrieve the records responsive to Ms. Dray’s request from the Authority’s Board members. The Authority is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Authority must clarify this issue. 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

John Nagle SPR21/2069 Page 4 August 30, 2021 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). Although the Authority cites Suffolk and states in its response that the records “. . . are privilege confidential communications with the [Authority’s] counsel,” the Authority has not demonstrated that these communications were received from a client, for the purpose of obtaining legal advice from the Authority’s attorney and the privilege has not been waived. Further, the Authority has not provided a privilege log in accordance with G. L. c. 66, § 10A(a). As such, I find the Authority has not met its burden of specificity in applying the attorney-client privilege to withhold records from disclosure. The Authority must clarify these issues. Conclusion Accordingly, the Authority is ordered to provide Ms. Dray with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Elizabeth Dray