Jeff Raymond v. Medford, City of - Police Department (SPR 20231775)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2023 SPR23/1775 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 [an identified 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… Previous appeal This request was the subject of a previous appeal. See SPR23/1334 Determination of the Supervisor of Records (June 28, 2023). In my June 28th determination, I directed the Department to provide further information regarding its claim of attorney-client privilege. The Department provided a response on July 24, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1775, was opened as a result. 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 SPR23/1775 Page 2 August 15, 2023 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. 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 28th response In its June 28, 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. In its response, the Department stated the following: The City of Medford Police Department is providing this further response to the above appeal, SPR23/1334. In response to the specific questions outlined in the determination by the Supervisor, and in expressly incorporating its earlier detailed responses outlining the confidential communications at issue, I can confirm that

Chief Jack D. Buckley SPR23/1775 Page 3 August 15, 2023 the communications identified specifically in its prior response were made in confidence and the attorney-client privilege has not been waived. The confidential communications related to confidential legal advice provided to the Chief of Police from legal counsel, as identified, regarding legal matters related to pending public records requests and related responses on behalf of the Medford Police Department. The e-mails are confidential, protected by the attorney-client privilege, and as Chief of Police, I [sic] entitled to receive confidential legal advice from counsel advising on matters relating to Police Department responsibilities as Chief of Police for the City, both through Mass Chiefs Association, of which I am a member, as well as through counsel for the City. In its previous response, see SPR23/1334 Determination of the Supervisor of Records (June 28, 2023), the Department 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 . . ., and two dated 4/26/23 and 5/1/23. In his appeal, Mr. Raymond claims the following: Attorney-Client Privilege deals with confidential communications between governmental bodies and their counsel. As demonstrated before, the Massachusetts Chiefs of Police Association (MCOPA) is not the counsel for the municipality or PD. While the MCOPA legal counsel may provide advice to chiefs as part of their role as an advocacy organization, they do not generally serve as counsel for municipalities or PDs, nor has Medford provided any further justification to sustain the claim that MCOPA acted as legal counsel for Medford PD. The legal counsel for the town is not MCOPA. Further, Medford shows no established attorney-client relationship between themselves and KP Law, as their website still lists a vacant position in their law department. Finally, it is already known that the content of the 4/13 email is a newsletter and not attorney-client communications; if the PD and municipality incorrectly claim that a newsletter is privileged, it calls the other communications into further question. Based on the Department’s response, in conjunction with Mr. Raymond’s claims, I find the Department has not established the existence of an attorney-client relationship under these circumstances. As such, the Department must clarify how an attorney-client relationship exists between the Department and the General Counsel of MCOPA. Further 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

Chief Jack D. Buckley SPR23/1775 Page 4 August 15, 2023 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). Upon review, I find that the Department has not met its burden to withhold the requested records pursuant to the attorney-client privilege as the privilege log does not provide the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. 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