Olufunmilola Shelly v. Framingham, City of (SPR 20222233)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 14, 2022 SPR22/2233 Paul J. Iversen Records Access Officer Mayor’s Office City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: 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 August 26, 2022, Ms. Shelly requested “[a]ny email by [a specified individual] to any city councilors in regards to aggressive solicitation between 8/14/2022 and 8/25/2022…” The City provided a response on October 3, 2022. Unsatisfied with the response, Ms. Shelly petitioned this office and this appeal, SPR22/2233, 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. 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

Paul J. Iversen SPR22/2233 Page 2 October 14, 2022 The City’s October 3rd Response In its October 3, 2022 response, the City claimed attorney-client privilege to redact the requested records. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. The indices shall include 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, § l0A(a). 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). In its response, the City stated that the records “. . . have been redacted under the attorney-client privilege. These are communications made in confidence between City officials . . . and the City Solicitor . . . for purposes of providing/obtaining legal advice for which the privilege has not been waived/date and subject of the communications are set forth in the record.” In light of the above, and where the City has provided a detailed description of the records, 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, I find the City has met its burden to withhold portions of the responsive communications under the attorney-client

Paul J. Iversen SPR22/2233 Page 3 October 14, 2022 privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Shelly is not satisfied with the result 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly