Glen Ayers v. Greenfield, City of - City Clerk (SPR 20231744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2023 SPR23/1744 Kathryn J. Scott Records Access Officer City of Greenfield 14 Court Square Greenfield, MA 01301 Dear Ms. Scott: I have received the petition of Glen Ayers appealing the response of the City of Greenfield (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 9, 2023, following previous email and verbal correspondence with the City, Mr. Ayers “requested the records associated with the expenditure of $45,542.70 in legal fees associated with the Lunt TCE contamination and PIP Process.” I understand Mr. Ayers made the same request verbally on an earlier date. The City responded on July 7, 2023, and again on July 27, 2023, providing numerous records, citing the attorney-client privilege for redacting certain records, and also providing information on how to access other records via a website. Unsatisfied with the City’s responses, Mr. Ayers 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 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

Kathryn J. Scott SPR23/1744 Page 2 August 11, 2023 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. Issues Outside the Authority of this Office In addition to issues regarding the Public Records Law, in his appeal petition, Mr. Ayers also contends the following: [T]he City is engaged in an administrative process pursuant to 310 CMR 40.14000 (MCP) which requires that all information associated with the clean-up of the Lunt toxic waste dump be shared with the Public Involvement Plan (PIP) Group.... As such, it is a willful violation of the DEP regulations to withhold this information from the PIP Group. The Secretary of State should render an opinion as to how to resolve the tension between the disclosure required by the MCP regulations, and the frivolous claim of exemption by the Mayor of Greenfield. Please be advised that the Office of the Supervisor of Records is statutorily empowered with the authority to determine the public record status of government records. See G. L. c. 66, § 10. Further, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has been alleged. See G. L. c. 66, § 10A(a). Please note that alleged violations of Department of Environmental Protection regulations are outside the jurisdiction of this office. Given that such issues do not fall within the authority of this office, I am unable to address such issues in this determination. The City’s July 7th and July 27th Responses In its July 7, 2023 and July 27, 2023 response, the City provides numerous records, cites the attorney-client privilege for redacting certain records, and also provides information on how to access other records via a website. 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.

Kathryn J. Scott SPR23/1744 Page 3 August 11, 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 July 7th response, regarding the attorney-client privilege, the City states the following: The City intends to withhold all confidential communications between the City and its legal counsel undertaken for the purpose of seeking or providing legal advice regarding this matter, because such records are protected attorney/client communications and exempt from disclosure under the Public Records Law. These exempt records include emails, voicemails, correspondence, memos and similar communications between the City and its legal counsel, as well as the description of legal services contained in legal counsel’s invoices to the City. The grounds for withholding these records include: - These are confidential communications between the City and its attorneys undertaken for the purpose of seeking or providing legal advice related to this matter, and as such are privileged; - To allow the full and frank disclosure to legal counsel of all facts relevant to this matter, and thus facilitate effective legal representation; - To protect legal counsel’s mental impressions and legal theories; - To protect methods and strategies for environmental cleanup discussed between legal counsel and the City so that the City acts in accordance with Massachusetts statutes and regulations, in order to ensure the environmental cleanup is conducted properly to protect public health, and to avoid government sanctions or litigation. In its July 27th response, the City provides numerous responsive invoices in redacted form. In his appeal petition, Mr. Ayers contends that he is “appealing the improper redaction of the entire ‘Description’ section of every invoice that was submitted to the City for payment.” He goes on to contend that “such an invoice and the simple description that it contains cannot be claimed to be protected communications and/or attorney work product.” Additionally, in an email to this office on July 28, 2023, Mr. Ayers further contends that “some of the exact same information that was provided in a heavily redacted document on 7/27/23 had been previously released in an unredacted form to the public as part of the agenda for the 1/18/23 City Council meeting.... This same information for which the City is now claiming attorney-client privilege was previously released to the public, which pierces the claimed privilege, since the information had already been released to a third party.”

Kathryn J. Scott SPR23/1744 Page 4 August 11, 2023 Based on the information provided in the City’s responses, I find that the City has not met its burden to redact records under the attorney-client privilege. Additionally, it is unclear whether the City is withholding other records in their entirety under the privilege. Consequently, in accordance with G. L. c. 66, § 10A(a), the City must provide “a detailed description of the record[s], 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.” Further, in light of the information included with Mr. Ayers’ appeal, where it appears that some of the redacted information has already been provided to the public, the City must clarify whether the communications were made in confidence and whether the privilege as to the communications has been waived. Records in Existence; Possession, Custody, or Control Please be 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). In its July 7th response, the City states that “all of the environmental reports and correspondence submitted to the MassDEP related to this matter are available to the public in electronic format on the MassDEP’s website,” and provides instructions to access the website. In its July 27th response, the City provides copies of a responsive contract, letter, and redacted invoices, as discussed above. In his appeal petition, Mr. Ayers contends that “no actual records were provided that were generated during the ensuing year from the initiation of this spending.” He goes on to argue that “no truly responsive documents have been provided, and any records that were generated were hidden.” In this case, it is unclear whether the City possesses any additional records responsive to Mr. Ayers’ request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. Ayers 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.

Kathryn J. Scott SPR23/1744 Page 5 August 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Glen Ayers