Rachel Young v. Boston, City of - Public Records (SPR 20222817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2022 SPR22/2817 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Rachel Young 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 November 9, 2022, Ms. Young requested “[a]ll emails and attachments discussing the Racial Equity Planning Tool (REPT) related to the proposed merger of the Sumner and the Philbrick.” The City responded on November 29, 2022. Unsatisfied with the response, Ms. Young petitioned this office and this appeal, SPR22/2817, was opened as 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

Shawn A. Williams, Esq. SPR22/2817 Page 2 December 22, 2022 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 November 29th response In its November 29, 2022 response, the City provided a total of 673 pages of records to the requester. The City withheld a portion of the responsive records under Exemption (d) of the Public Records Law and attorney-client privilege. The City provided a privilege log along with its response. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the City stated that “…99 documents are exempt from disclosure under the deliberative process exemption G. L. c. 4, § 7(26).” Based on the City’s response, I find the City has not met its burden to withhold the requested records in their entirety pursuant to Exemption (d). In particular, the City has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). It is additionally uncertain how the records are inter-agency or intra- agency memoranda or letters relating to policy positions, and how disclosure would taint the ongoing deliberative process.

Shawn A. Williams, Esq. SPR22/2817 Page 3 December 22, 2022 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. 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 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 response, the City stated that “…61 documents are exempt from disclosure under the attorney-client privilege. Please see the attached Privilege Log for your convenience.” The City has not explained whether 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. Further, the City has not stated whether the communications were made in confidence or whether the privilege as to these communications has been waived. Additionally, the City must provide further specificity with regard to the privilege log and include the substance of each record, and the grounds upon which the attorney-client privilege is being claimed. Based upon the City’s response, I find the City has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. Conclusion Accordingly, the City is ordered to provide Ms. Young 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. Ms. Young may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPR22/2817 Page 4 December 22, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Rachel Young