Michael Hugo v. Framingham, City of (SPR 20222833)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2022 SPR22/2833 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Michael Hugo appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 6, 2022, Mr. Hugo requested: 1. All emails or other written communications or notes written by, received by, or copies circulated to or from [an identified individual], and/or addressed to or from [an identified individual] by [an identified individual] for the period of October 1, 2021, to 30 days after [an identified individual’s] last date of employment by the City of Framingham. 2. All emails or other written communications or notes written by, received by, or copies circulated to or from [an identified individual] and/or addressed to or from [an identified individual] by [an identified individual] for the period of October 1, 2021, to 30 days after [an identified individual] last date of employment by the City of Framingham. 3. All text messages or other written or electronic communications, including emails, between [an identified individual] and [an identified individual] referring to [an identified individual] from October 1, 2021 to the present day. On August 19, 2022, Mr. Hugo modified his request with the date range of October 15, 2021 to December 31, 2021. On December 5, 2022, the City responded. Unsatisfied with the City’s response, Mr. Hugo petitioned this office and this appeal, SPR22/2833, was opened as a result. 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 SPR22/2833 Page 2 December 23, 2022 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. 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 5th Response In its December 5, 2022 response, the City asserts: The records responsive to your request are attached/linked. Two have been redacted under exemptions (c) and (o) of the MA Public Records law for the personal contact information of an elected city employee (used prior to assuming office) and the personal contact information of private citizens. Some records have been redacted under the Attorney-Client privilege, recognized in Suffolk Construction v. DCAM, 449 Mass. 444 (2007). These were 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. The date and subject of the communications are set forth in the record itself. Current Appeal In his appeal, Mr. Hugo appears to be challenging the applicability of the attorney-client privilege to redact a responsive record. Mr. Hugo also appears to challenge the redactions of a court-filed document. Mr. Hugo does not appear to be challenging the applicability of Exemptions (c) and (o) to redact the responsive records. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law

Paul J. Iversen SPR22/2833 Page 3 December 23, 2022 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 his appeal, Mr. Hugo argues: The subject email, which precipitated the request is not privileged, notwithstanding that [an identified attorney] is included in the string. Upon information and belief, that email does not satisfy the criteria needed to sustain an attorney client privilege. The mere inclusion of an attorney’s name in an email string has been held to be insufficient grounds to sustain that privilege…. In light of Mr. Hugo’s statement, it is unclear whether the attorney-client privilege has been waived. See Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (concluding that disclosing attorney-client communications to a third party generally undermines the privilege). Additionally, Mr. Hugo asserts, “[f]rom the appearance of [another identified document], it would appear that this is a court-filed document from pending litigation. If it is, unless it has been sealed by Middlesex Superior Court, the act of redacting it should not go unsanctioned by the Secretary of State.” Based on the City’s response, in conjunction with Mr. Hugo’s appeal, it is unclear what exemption(s) the City is claiming to redact most of the court document. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Paul J. Iversen SPR22/2833 Page 4 December 23, 2022 Conclusion Accordingly, the City is ordered to provide Mr. Hugo with a response to his request 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 the response to this office at pre@sec.state.ma.us. Mr. Hugo may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Hugo