Michael Hugo v. Framingham, City of (SPR 20230076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2023 SPR23/0076 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/2833 Determination of the Supervisor of Records (December 23, 2022). In my December 23rd determination, I ordered the City to provide Mr. Hugo with a response to his request. On January 10, 2023, the City 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 SPR23/0076 Page 2 January 30, 2023 responded. Unsatisfied with the City’s response, Mr. Hugo petitioned this office and this appeal, SPR23/0076, 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. 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 January 10th Response In its January 10, 2023 response, the City asserts: The City of Framingham reiterates and reaffirms all claims of attorney-client privilege with regard to the above-referenced public records request and subsequent appeal. These are all 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 document that the requestor describes as appearing to be a court-filed document is a draft affidavit that has been properly redacted in accordance with the attorney-client privilege. 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

Paul J. Iversen SPR23/0076 Page 3 January 30, 2023 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). Section 10A(a) provides, in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; provided, however, that where a record has been withheld on the basis of a claim of the 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. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney-client privilege and the attorney work product privilege. G. L. c. 66, § 10A(a) (emphasis added). Current Appeal In his appeal, Mr. Hugo argues: I ask for an in camera review of the email in question under the previously cited cases and doctrine. An in camera review will demonstrate that the openly contemptuous responsive language contained therein as written by [an identified individual] and as redacted simply flies in the face of reality as an attorney-client communication. There was no intent to seek counsel in that particular email. As for the explanation of the court filed document, I will waive my claims if that is true, but because of the veracity of [the City’s] claims in other responses, the placement of the redaction as compared with the document as filed, I ask for a review by the office of open government to assure that this is the case. Where the City has provided a detailed description of the record under G. L. c. 66, §

Paul J. Iversen SPR23/0076 Page 4 January 30, 2023 10A(a), in addition to asserting the attorney-client privilege under Suffolk, I find the City has met its burden to redact the responsive record under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Michael Hugo