Patrick N. Bryant v. Boston, City of - Public Records (SPR 20230760)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2023 SPR23/0760 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 Attorney Patrick N. Bryant, on behalf of the Boston Police Superior Officers Federation, 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 December 23, 2022, Attorney Bryant requested the following: All communications and documents, including but not limited to text messages and emails, concerning [a named individual] received by and/or sent from a member of the Mayor’s Office, including but not limited to [four individuals], from June 2021 to present. Previous Appeal This request was the subject of a previous appeal. See SPR23/0221 Determination of the Supervisor of Records (February 21, 2023). In my February 21st determination, I ordered the City to provide Attorney Bryant with a response to his request. Subsequently, the City responded on March 28, 2023, providing records, and claiming to withhold others pursuant to the attorney- client privilege. Unsatisfied with the City’s response, Attorney Bryant 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 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. SPR23/0760 Page 2 May 2, 2023 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In his appeal petition, Attorney Bryant first contends “that the City has failed to provide a single text message from or to any key figures in the Mayor’s office pertaining to the request. There is no text message listed on the privilege log. This total lack of production seems inappropriate.” Referring to specific communications between multiple individuals, Attorney Bryant goes on to argue that “it is unpersuasive to contend, especially without any representation that a search of text messages was conducted, no such messages exist.” Second, concerning the City’s Privilege Log, Attorney Bryant contends, among other things, that “there is insufficient reason to believe that the communications are made for the purpose of legal advice.” Further, he asserts that “many communications appear not to be for the purpose of legal advice, for instance as they are one-way communications from Press officials ... Sworn officers assigned to security detail ... or a superintendent in charge of investigations.... There is no evidence that attorneys responded.” Additionally, Attorney Bryant provides a partial list of the individuals named in the privilege log, with their job positions in the City. The City’s March 28th Response In its March 28, 2023 response, the City states that it is withholding records pursuant to the attorney-client privilege, and provides a privilege log in support of this claim. 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.

Shawn A. Williams, Esq. SPR23/0760 Page 3 May 2, 2023 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). Under the attorney-client privilege, the City argues that “some of the records ... consist of correspondence from or to a Boston Police Department Legal Advisor. These records consist of attorney-client privileged communications.... These records shall be withheld entirely.” The City goes on to argue the following: The withheld records consist solely of communications between a Boston Police Department Legal Advisor and others within the Boston Police Department. Such records contain 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 City of Boston. A privilege log is provided with the responsive records. Additionally, in its Privilege Log, the City lists approximately 30 communications, and includes the dates, the names of the authors and recipients, and the subjects of the communications. However, based on the information provided in the privilege log, it is unclear how the withheld communications could constitute communications made during a client’s search for legal advice, or how the privilege has not been waved. For example, where the log includes communications from the Chief Communications Officer to a Communications Associate, and from the Chief of Policy and Strategic Planning to the Chief of Staff to the Mayor, and from the Boston Police Superintendent to the Chief of Staff to the Mayor, it is unclear how such correspondence could constitute attorney-client privileged communications. Further, where numerous communications listed in the log include what appears to be a group email under the name “Press Office,” it is additionally unclear how the privilege in such cases applies. The City must clarify these matters. Records in Existence; Possession, Custody, or Control The City is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5).

Shawn A. Williams, Esq. SPR23/0760 Page 4 May 2, 2023 Based on the information provided in Attorney Bryant’s appeal concerning communications by text message, it is unclear whether the City possesses any additional records responsive to Attorney Bryant’s request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Attorney Bryant with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Patrick N. Bryant, Esq.