Glen Ayers v. Greenfield, City of - City Clerk (SPR 20232318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2318 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/1744 Determination of the Supervisor of Records (August 11, 2023). In my August 11th determination, I ordered the City to clarify its claims under the attorney-client privilege, and to clarify whether it possesses additional responsive records. Subsequently, the City responded on August 25, 2023. Unsatisfied with the City’s response, Mr. Ayers further 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. 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 SPR23/2318 Page 2 October 13, 2023 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. The City’s August 25th Response In its August 25, 2023 response, the City provides numerous records, including some in redacted form, and cites the attorney-client privilege for withholding others. 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). With its August 25th response, the City provides a privilege log listing approximately 45 documents withheld in their entirety and approximately 4 documents provided in redacted form. For each document listed in the privilege log, the City includes the date, the names of the author and recipients, a description of the record, and the grounds upon which the privilege is claimed. The City also confirms that the communications were undertaken during the course of the client’s search for legal advice. With regard to the redacted invoices, the City also provides the following information: With respect to invoices ... the only portions of entries that have been redacted are those sections that describe the substance of communications between Attorney Quinn and City officials, or tasks that were done at the direction of City officials where the disclosure of those tasks would divulge privileged communications or legal strategy. In this case, where the City has provided a detailed description of each record withheld or

Kathryn J. Scott SPR23/2318 Page 3 October 13, 2023 redacted pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, I find that, with the exception described below, the City has met its burden to withhold the majority of the documents listed in the August 25th privilege log. With regard to one document listed as redacted in its privilege log, the City provides the following information: [A]n invoice from Egan, Flanagan & Cohen, P.C. dated August 24, 2022 (Invoice No. 50476) was produced to the City Council in unredacted form in advance of the City Council’s meeting on January 18, 2023. This disclosure of the unredacted invoice was inadvertent and made without consultation with legal counsel. While the City is incapable of reversing the accidental public disclosure of that document, it maintains that it should retain its protected status by virtue of the attorney-client privilege subject to more targeted redaction in accordance with the Determination. The City does not believe that this inadvertent disclosure of one invoice constitutes a waiver of the attorney-client privilege for it or other invoices or for any other public records in the City’s possession that should be entitled to protection under the attorney-client privilege. Additionally, in his appeal petition, Mr. Ayers indicates that this document can be found in unredacted form online. Where the specific invoice described above has been publicly disclosed, I find that the City has not met its burden to redact this particular invoice pursuant to the attorney-client privilege. Specifically, it is unclear how the privilege as to this communication has not been waived. See Suffolk, 449 Mass. at 450 n.9. 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. Sincerely, Manza Arthur Supervisor of Records cc: Glen Ayers Jesse W. Belcher-Timme, Esq.