Joan P. Beckta v. Everett, City of - Solicitor's Office (SPR 20230219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 17, 2023 SPR23/0219 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Joan P. Beckta appealing the response of the City of Everett (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 10, 2023, Ms. Beckta requested “[a]ll the bills from GreenbergTraurig pertaining or purporting to pertain to the inquiry… by the U.S. Attorney’s Office and the Dept. of Justice, for which GreenbergTraurig applied for payment and which was on the Agenda for the 11/15/22 City Council meeting. . . .” The City provided a response on February 2, 2023. Unsatisfied with the response, Ms. Beckta petitioned this office and this appeal, SPR23/0219, 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, § l0A(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

Colleen M. Mejia, Esq. SPR23/0219 Page 2 February 17, 2023 The City’s February 2nd Response In its February 2, 2023 response, the City cited Exemption (a) of the Public Records Law and attorney-client privilege to redact information. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the City stated, “[p]lease be advised that with respect to the redacted portions of the responsive documents are exempt from disclosure under Exemption (a). MGL c. 4 s. 7(26)(a) provides the city a basis for withholding records that are ‘specifically or be necessary implication exempted from disclosure by statute.’” Based on the City’s response, it is unclear what statute the City is claiming to redact the responsive records. The City is reminded that for Exemption (a) to apply, the requested record must be “specifically or by necessary implication exempted from disclosure by statute.” G. L. c. 4, § 7(26)(a). Consequently, the City must state the statute that permits it to redact the 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)

Colleen M. Mejia, Esq. SPR23/0219 Page 3 February 17, 2023 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. Rapa & 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 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 the following: The details in the invoices are confidential communications under the attorney-client privilege. Further, withholding correspondence which contain confidential communications between the city Solicitor’s Office and its outside attorneys are communications protected by the attorney-client privilege. MGL c. 4 s. 7 (26); see Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007) (concluding that the enactment of the Public records Law did not destroy the protection provided by the attorney-client privilege to communication between governmental entities and their lawyers) see also DaRosa v. New Bedford, 471 Mass. 446, 453 (2015) (reaffirming Suffolk Construction principle that “communications within the attorney-client privilege are impliedly exempt from the definition of the ‘public records’ and therefore are protected from public disclosure under the act”) In her appeal petition, Ms. Beckta states, “[i]t has not been established that the city of Everett ever hired GreenbergTraurig, but Everett would be the client in the relationship, so it could certainly waive privilege if it wanted to, but I don’t believe it exists here.” Although the City provides some information regarding these records, I find that the City did not provide a sufficient privilege log in accordance with G. L. c. 66, § 10A(a). As such, the City must provide a detailed description of the record that includes the names of the author and recipients, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. Further, the City must clarify whether the privilege has not been waived. Conclusion Accordingly, the City is ordered to provide Ms. Beckta with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Colleen M. Mejia, Esq. SPR23/0219 Page 4 February 17, 2023 within 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. Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta