Lonn Drucker v. Boston, City of - Public Records (SPR 20222196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2022 SPR22/2196 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Lonn Drucker appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2022, Lonn Drucker requested a copy of “Phase 2 of the Mission Hill School report.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1961 Determination of the Supervisor of Records (September 9, 2022). In my September 9th determination, I ordered the City to clarify its claims under the attorney-client privilege for withholding the responsive report. Subsequently, the City responded on September 12, 2022. Unsatisfied with the City’s response, Lonn Drucker 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). 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. Att’y 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 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

Shawn A. Williams, Esq. SPR22/2196 Page 2 October 7, 2022 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 City’s September 12th Response In its September 12, 2022 response, as in its previous August 19, 2022 response, the City claims the attorney-client privilege for withholding the responsive report in its entirety. 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 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). In its September 12th response, the City provides the following information in support of its claim of attorney-client privilege: The responsive record is a May 2022 document provided by the Hinckley Allen Law Firm, entitled Mission Hill Investigation, Phase II. As indicated in [the City’s] July 21, 2022 letter this record is entirely exempt as an attorney-client privileged communication. The attorney is the Hinckley Allen Law Firm. The privilege has not been waived. Based on its September 12th response, I find that the City has not met its burden in responding to this request. It remains unclear how the report, which concerns an investigation “regarding allegations of inadequate leadership and a number of safety concerns, including bullying, sexual abuse, and an unsafe environment,” would in its entirety constitute

Shawn A. Williams, Esq. SPR22/2196 Page 3 October 7, 2022 communications made in the course of a client’s search for legal advice from an attorney. Specifically, the City must clarify whether the report contains factual information or observations that can be segregated and provided in response to the request. Further, in spite of the City’s claim, it remains unclear whether any privilege has been waived. The City has not provided the complete information required under G. L. c. 66, § 10A(a). Specifically, the City must provide the names of the recipients of the report, along with a description of the substance of the report, and an explanation of the grounds upon which the privilege is being claimed. Conclusion Accordingly, the City is ordered to provide Lonn Drucker with a response to the 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, Manza Arthur Supervisor of Records cc: Lonn Drucker