Jeff Raymond v. Essex, Town of - Police Department (SPR 20232275)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2275 Paul D. Francis Chief of Police Essex Police Department 11 John Wise Avenue Essex, MA 01929 Dear Chief Francis: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Essex 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 April 26, 2023, Mr. Raymond requested the following: [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 [a named individual] (. . . and other similar permutations) and/or from “MCOPA General Counsel,” broadly construed. This should include both newsletter and mailing list communications (sometimes designated via “Constant Contact” or similar mailing list programs) and outreach specific to your municipality and department . . . [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 legal@masschiefs.org. This should include both newsletter and mailing list communications (sometimes designated via “Constant Contact” or similar mailing list programs) and outreach specific to your municipality and department, and may be the same records as in the previous bullet. [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 to or from info@masschiefs.org[.] 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 Paul D. Francis SPR23/2275 Page 2 October 10, 2023 Prior Appeals The requested records were the subject of prior appeals. See SPR23/1163 Determination of the Supervisor of Records (June 14, 2023); SPR23/1430 Determination of the Supervisor of Records (July 7, 2023); SPR23/1690 Determination of the Supervisor of Records (August 7, 2023) and SPR23/2275 Determination of the Supervisor of Records (September 5, 2023). In my September 5, 2023 determination, I found that the Department did not meet its burden to withhold records under the attorney-client privilege. On September 22, 2023, the Department responded, reiterating its claims under the attorney-client privilege. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/2275, 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 town 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. The Department’s September 22nd response In its September 22, 2023 response, the Department indicated that it had four responsive emails that it was withholding pursuant to the attorney-client privilege and referenced its previously provided privilege log. Current appeal In his current Mr. Raymond suggested that the Department did not have an attorney- client relationship with the MCOPA. 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.

Chief Paul D. Francis SPR23/2275 Page 3 October 10, 2023 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 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). Regarding the attorney-client privilege claim, the Department stated the following: As Chief of Police, I am responding to the above determination, and incorporating all of the prior responses regarding this matter. As previously stated on several occasions, the e-mails between myself as a member of Massachusetts Chiefs of Police, and its General Counsel are privileged, and will not be provided given the confidential nature of the communications, for which the privilege has not been waived. Significant information has already been provided to establish the attorney-client relationship with the General Counsel. Specifically, as an active member of Massachusetts Chief’s Association in my capacity as Chief of Police, I have an attorney-client relationship with its General Counsel, who has provided me with confidential legal advice on particular matters, as needed. I respectfully refer the requester and the Supervisor to such prior responses. In his appeal, Mr. Raymond claims that the Department did not meet its burden to withhold the responsive records under the attorney-client privilege, because the Department does not have an attorney-client relationship with Massachusetts Chief of Police Association (MCOPA). Mr. Raymond further stated that one of the requested emails was previously shared by other custodians and thus the privilege was waived regarding that email. Based on the Department’s September 22nd response, I find the Department has not established the existence of an attorney-client relationship under these circumstances. It remains uncertain how an attorney-client relationship exists between the Department’s Chief of Police and the General Counsel of MCOPA. Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Chief Paul D. Francis SPR23/2275 Page 4 October 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond