Alex Marthews v. Boston, City of - Police Department (SPR 20231193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 16, 2023 SPR23/1193 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Alex Marthews, of MuckRock News, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2023, Mr. Marthews requested the following records: A copy of any materials, including presentations, brochures, emails, images or other information, used in training fusion center employees on 28 CFR Part 23.20 (‘CRIMINAL INTELLIGENCE SYSTEMS OPERATING POLICIES --- Operating principles’). DHS monitors whether fusion center employees receive training in these materials, and how often. A previous public records request (PRR B000036-010821) disclosed that such trainings have in fact occurred at the Boston Regional Intelligence Center. The City provided responses on April 14, 2023 and May 8, 2023. Unsatisfied with the responses, Mr. Marthews petitioned this office and this appeal, SPR23/1193, 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). 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. SPR23/1193 Page 2 June 16, 2023 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 April 14th and May 8th responses In its April 14, 2023 response, the City withheld all responsive records under attorney- client privilege. In its May 8, 2023 response, a City representative stated that “Boston Police informed me that a sentence was inadvertently omitted from the response dated April 13: All BRIC personnel complete annual training on 29 CFR Part 23, available at [link provided].” When Mr. Marthews attempted to access the link, he found that it was password- protected. When he contacted the City by phone, a City representative informed him that the public did not have access to the records “for copyright reasons.” To the extent that the City intends to withhold a portion of the records “for copyright reasons,” the City’s response did not contain the specificity required in a denial of access to public records. The City did not specify under what exemption of the Public Records Law it intends to withhold the requested records. As a result, I find that the City did not satisfy its burden in responding to this records request. If the requested records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). 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. SPR23/1193 Page 3 June 16, 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). In its April 14, 2023 response the City stated the following: The responsive records relate to BRIC personnel annual training on 28 CFR Part 23. In addition, BRIC personnel receive annual training from the attorney assigned to the BRIC, which includes discussion on 28 CFR Part 23. On or around November 16, 2022, BRIC attorney, . . . authored and created a powerpoint presentation for this training. These materials are withheld in full and exempt from production under the attorney-client privilege. See e.g., Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007) (confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege). These materials were created by the attorney assigned to the BRIC, presented to BRIC personnel, and for the purpose of providing legal advice. See G.L. ch. 66, § 10A(a). The client is the BRIC and the privilege has not been waived. Where the City has not provided a privilege log with 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 pursuant to G. L. c. 66, § 10A(a), I find the City has not met its burden to withhold the responsive records under the attorney-client privilege. Additional records Based on Mr. Marthews’ appeal and the City’s response, it is unclear if the City possesses additional records responsive to the request. G. L. c. 66, § 10(b)(iv) (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…”). 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). Conclusion Accordingly, the City is ordered to provide Mr. Marthews with a response to his request

Shawn A. Williams, Esq. SPR23/1193 Page 4 June 16, 2023 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. Marthews 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: Alex Marthews