Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20213220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2021 SPR21/3220 Todd Palmer SRAO Department City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2021, Ms. Shelly requested, “all texts sent or received by any of the following people between 12pm on 11/23/2021 and 11:59pm on 11/23/2021. These texts may reside on a cell phone paid by the city, an iPad, or any electronic device paid for by the city. These texts may reside on personal cell phones too.” The City provided a response on December 9, 2021. Unsatisfied with the City’s response, Ms. Shelly petitioned this office and this appeal, SPR21/3220, 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. 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

Todd Palmer, SRAO SPR21/3220 Page 2 December 17, 2021 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 City’s December 9th response In its December 9, 2021 response, the City stated, “[c]ertain text messages exchanged between Mayor Spicer and Attorney Petrini, have been withheld from this response as they are attorney-client privileged communications which are exempt from disclosure under Suffolk Construction v. DCAM, 449 Mass. 444 (2007). The text messages were exchanged in confidence for the purpose of the City Solicitor providing legal advice to the Mayor regarding a City Council vote, and the privilege as to such advice has not been waived.” 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 December 9th response. Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Todd Palmer, SRAO SPR21/3220 Page 3 December 17, 2021 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: Olufunmilola Shelly