Joan P. Beckta v. Everett, City of - Office of the City Clerk (SPR 20232295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2023 SPR23/2295 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Joan P. Beckta appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2023, Ms. Beckta requested, “…documentation of the fair market value of … Church St. ...” On July 25, 2023, the City responded and denied Ms. Beckta access to the responsive records pursuant to Exemptions (a) and (i) of the Public Records Law and attorney- client privilege. Unsatisfied with the City’s response, Ms. Beckta petitioned this office and this appeal, SPR23/2295, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Colleen M. Mejia, Esq. SPR23/2295 Page 2 October 11, 2023 The City’s July 25th response In the City’s July 25, 2023 response, it indicated that responsive records could be withheld pursuant to Exemptions (a) and (i) of the Public Records Law and attorney-client privilege. 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 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). Under the attorney-client privilege, the City stated the following: As your request seeks correspondence between City officials and the owner of the property or any other party involved, there are communications between City officials and City attorneys that may be responsive to your request, including the City Solicitor’s and outside special counsel, including KP Law, P.C. Attorneys that are privileged. It is expected that such communications protected under the attorney-client privilege will be withheld from disclosure. G.L. c. 4, §7(26); Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); 950 CMR 32.06(3). The City’s response did not contain the specificity required in a denial of access to public records. The City did not identify the records in its possession that it intends to withhold from disclosure. Further, the City merely cites the attorney-client privilege without sufficient explanation of its applicability to the responsive records. In this case, the City has not provided any description of the records being withheld under the privilege, nor explained how the records are privileged under Suffolk. Also, the City did not provide the names of the author and recipients, dates, subject of the records, nor the grounds upon which the privilege is being claimed per G. L. c. 66, § 10A(a). The City must clarify these matters.

Colleen M. Mejia, Esq. SPR23/2295 Page 3 October 11, 2023 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Regarding Exemption (a), the City states, “[t]he City maintains that records responsive to your request are exempt from disclosure under Exemption (a). MGL c. 4, § 7(26)(a) provides the City a basis for withholding, records that are ‘specifically or by necessary implication exempted from disclosure by statute.’ The Open Meeting Law statutorily declares executive session materials exempt from public records law MGL c. 30A § 22(f).” Open Meeting Law Given that the City claims that the records are executive sessions materials, this response potentially invokes the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination under the Public Records Law at this time. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. Exemption (i) Exemption (i) applies to: appraisals of real property acquired or to be acquired until (1) a final agreement is

Colleen M. Mejia, Esq. SPR23/2295 Page 4 October 11, 2023 entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired G. L. c. 4, § 7(26)(i). The purpose of Exemption (i) is to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent domain proceeding, the same degree of confidentiality that is afforded to private parties. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition of real property. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239, 241 (2004). Under Exemption (i), the City asserts the following: Further, the City maintains that records responsive to your request are exempt from disclosure under Exemption (i). The purpose of Exemption (i) is to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent domain proceeding, the same degree of confidentiality that is afforded to private parties. The exemption ensures that the government will not be at a bargaining disadvantage by allowing the other party to use the Public Records Law to gain access to an appraisal prior to completion of negotiations or litigation. Exemption (i) applies to: appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired. Neither of the three alternatives has occurred to date which means the documents are exempt. Based on the City’s response, it is unclear what records it is withholding under Exemption (i). To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The City must clarify this. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City’s response did not contain the specificity required in a denial of access to public records. The City did not identify the records in its possession that it intends to withhold from

Colleen M. Mejia, Esq. SPR23/2295 Page 5 October 11, 2023 disclosure. It is additionally uncertain how the records may be withheld in their entirety. The City must explain whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is ordered to provide Ms. Beckta with a response to the 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: Joan P. Beckta