Michael Durham v. Medford, City of (SPR 20212272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2021 SPR21/2272 Kimberly M. Scanlon, Esq. City Solicitor City of Medford 85 George P. Hassett Drive Medford, MA 02155 Dear Attorney Scanlon: I have received the petition of Michael Durham, through his attorney, Mark E. Rumley, Esq., 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/2017 Supervisor of Records Determination (August 19, 2021). In my August 19th determination, I ordered the City to clarify the grounds upon which it claimed the attorney client privilege. Subsequently, the City provided a supplemental response on September 1, 2021, reiterating its claim to withhold an October 22, 2020 memorandum 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 agency or municipality 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

Kimberly M. Scanlon, Esq. SPR21/2272 Page 2 September 16, 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 In his appeal petition, Mr. Durham first contends that the “October 22, 2020 memorandum contains only findings of fact.” He further contends that the author has “stated that her October 22, 2020 Memorandum was compiled by her on her own initiative after [the] Payroll Clerk . . . questioned a payroll request . . . to pay [one individual] when [a second individual] was being aid for those services. [The Payroll Clerk] wondered how two persons could be paid for the same job.” Secondly, Mr. Durham contends that “it is factually impossible that [the author] sought legal advice in the Memorandum of October 22, 2020 since Michael Durham did not request an investigation into the matter of his non-payment until October 26, 2020.” He notes that “the Memorandum that the City seeks to withhold is dated four (4) days earlier than Mr. Durham’s request” to the Chief of Staff for an investigation into the payroll matter. Thirdly, Mr. Durham contends that the City’s claim of attorney-client privilege “is inconsistent with the statements of the Chief of Staff” that “there were no ethical violations only performance related shortcomings” and that Mr. Durham’s not being paid “appears to have just been an administrative oversight.” The City’s September 1st Response In its September 1, 2021 response, the City reiterates that it is withholding one document 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 (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.

Kimberly M. Scanlon, Esq. SPR21/2272 Page 3 September 16, 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 not inspect the record but 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). Under the attorney-client privilege, the City asserts that “the City has withheld the following record:” A confidential memorandum dated October 22, 2020 addressed to the Medford City Solicitor Kimberly Scanlon from the City’s former Finance Director Aleesha Nunley Benjamin seeking legal advice from the City Solicitor relative to a payroll/personnel matter. The City has not waived the attorney-client privilege with respect to this confidential record. The City goes on to assert “that the record constitutes privileged information between a City official and its attorney involved in this matter, for the purpose of obtaining legal advice from the Medford City Solicitor on a particular matter, for which the attorney-client privilege has not been waived by the City.” In this case, the City has provided a detailed description of the record, the names of the author and recipient, the date, and the substance of the record. The City has also provided an explanation of the grounds for which the privilege is being claimed, and confirmed that the privilege has not been waived. Subsequently, I find that the City has met its burden to withhold the responsive record pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Durham 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Durham