Lonn Drucker v. Boston, City of - Public Records (SPR 20230112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2023 SPR23/0112 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 Appeals This request was the subject of previous appeals. See SPR22/1961 Determination of the Supervisor of Records (September 9, 2022) and SPR22/2196 Determinations of the Supervisor of Records (October 7, 2022; December 6, 2022 ). In my December 6th letter, I ordered the City to provide Lonn Drucker with a response to the request in accordance with my previous determination letters. Subsequently, the City responded on January 11, 2023. Unsatisfied with the City’s response, Lonn Drucker further 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. SPR23/0112 Page 2 January 31, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s January 11th Response In its January 11, 2022 response, the City reiterates its previous claim of attorney-client privilege for withholding the responsive records. 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 previous August 19, 2022 response, the City states the following: The withheld report was prepared by outside counsel for the Boston Public Schools. The report contains information between an attorney and client related to “the client’s search for legal advice from the attorney in his capacity as such.” All of these communications “were made in confidence.” In all cases “the privilege as to these communications has not been waived.” The client is the Boston Public Schools. In its September 12, 2022 response, the City provided 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.

Shawn A. Williams, Esq. SPR23/0112 Page 3 January 31, 2023 In its January 11, 2023 response, the City argues that “the recipient is the Boston Public Schools” and argues that the substance of the record “is an attorney-client privileged report produced by the Hinckley Allen Law Firm related to Phase II of the Mission Hill Investigation.” Based on the information provided in the City’s January 11th response, in conjunction with the information provided in the previous responses, I find that the City has not met its burden to withhold the responsive record pursuant to the attorney-client privilege. Specifically, the City has not demonstrated how the report, in its entirety, would constitute communications made in the course of a client’s search for legal advice. Further, where the City has described the recipient merely as “the Boston Public Schools,” I find the City has not provided the names of the recipients of the report, as required under G. L. c. 66, § 10A(a). Conclusion Accordingly, the City is ordered to review the records, redact where necessary, and provide the responsive records to Lonn Drucker, 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. Sincerely, Manza Arthur Supervisor of Records cc: Lonn Drucker