Jeff Raymond v. Medford, City of - Police Department (SPR 20231334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 28, 2023 SPR23/1334 Chief Jack D. Buckley Chief of Police Medford Police Department 100 Main Street Medford, MA 02155 Dear Chief Buckley: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Medford Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023, Mr. Raymond requested the following records: [1.] Copies of any responsive communications sent or received between January 1, 2023 through the present day by municipal employees and/or officers and/or employees of the police department to or from [specified individual]… and/or from [specified job title], broadly construed. [2.] Copies of any responsive communications sent or received between January 1, 2023 through the present day by municipal employees and/or officers and/or employees of the police department to or from [specified email address]. [3.] Copies of any responsive communications sent or received between January 1, 2023 through the present day by municipal employees and/or officers and/or employees of the police department containing any or all of the phrases as provided in the below sub-bullets… The Department responded on June 16, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1334, 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 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

Chief Jack D. Buckley SPR23/1334 Page 2 June 28, 2023 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 Department’s June 16th response In its June 16, 2023 response, the Department claimed attorney-client privilege to withhold the requested 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 (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 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 response, the Department stated the following: The Police Department has conducted a good faith search of its records to provide

Chief Jack D. Buckley SPR23/1334 Page 3 June 28, 2023 this response under the Public Records Law. Following such search, there are e- mails responsive to your request, as noted below. Such e-mails are being withheld pursuant to the attorney-client privilege, as they contain confidential information between the Chief of Police and counsel for the purpose of being provided legal advice. The Department also provided a privilege log and stated the following: As the table will not paste properly, the response identifies four emails, two dated 4/13/23 and 5/10/23 involving Massachusetts Chiefs of Police Association (MCOPA) legal counsel [specified individual], and two dated 4/26/23 and 5/1/23. The Department has not stated whether the communications were made in confidence or whether the privilege as to these communications has been waived. Additionally, the Department must provide further specificity with regard to the privilege log and include the substance of each record, and the grounds upon which the attorney-client privilege is being claimed. Based upon the Department’s response, I find the Department has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond