Mary Byrne v. Greenfield, City of - City Clerk (SPR 20231776)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2023 SPR23/1776 Kathryn J. Scott Records Access Officer City of Greenfield 14 Court Square Greenfield, MA 01301 Dear Ms. Scott: I have received the petition of Mary Byrne, of the Greenfield Recorder, 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 June 22, 2023, Ms. Byrne requested, “…all FY23 itemized invoices for services tendered by Egan, Flanagan and Cohen, PC, relating to the Public Involvement Plan (PIP) process at 298 Federal St.” On July 7, 2023, the City responded providing responsive records with redactions and indicating that it was withholding additional responsive records. Unsatisfied with the City’s response, Ms. Byrne petitioned this office and this appeal, SPR23/1776, 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. If there are any fees associated with a response, a written good faith estimate must be 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 SPR23/1776 Page 2 August 16, 2023 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 July 7th response In its July 7, 2023 response, the City provided responsive records with redactions pursuant to the attorney-client privilege. The City also withheld responsive records under the same claim. Current Appeal In her current appeal, Ms. Byrne claimed that the City did not meet its burden regarding the redactions pursuant to attorney-client privilege. Ms. Byrne has limited her appeal to redactions made to a number of invoices. 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. 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, 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:

Kathryn J. Scott SPR23/1776 Page 3 August 16, 2023 - 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. Based on the information provided in the City’s response, I find that the City has not met its burden to redact records under the attorney-client privilege. Specifically, it is unclear if the privilege to these communications has been waived. Further, 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.” Conclusion Accordingly, the City is ordered to provide Ms. Byrne with a response to her 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: Mary Byrne