Chris Dwan v. Somerville, City of - Law Department (SPR 20232415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2415 David Shapiro, Esq. Deputy City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Chris Dwan appealing the response of the City of Somerville (City) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On August 1, 2023, Mr. Dwan requested “... documents related to the city’s now- defunct lawsuit against Newport Construction and Northern Tree Service from the time that it was filed (November 2017) to the present.” Prior Appeals This request was the subject of prior appeals. See SPR23/2167 Determination of the Supervisor of Records (September 21, 2023) and SPR23/2260 Determination of the Supervisor of Records (October 5, 2023). In my October 5th determination, it was my understanding that the City would provide a supplemental response to Mr. Dwan. The City responded on October 10, 2023. Unsatisfied with the response, Mr. Dwan petitioned this office and this appeal, SPR23/2415, was opened as a result. Subsequently, the City provided an additional response on October 11, 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). 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

David Shapiro, Esq. SPR23/2415 Page 2 October 24, 2023 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(d)(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). The City’s October Responses In its October 10, 2023 response, the City claimed the attorney-client privilege to redact portions of the records. The City stated that “[t]he redacted information constitutes 1) communications between a client and an attorney, made during the course of the client’s search for legal advice from the attorney; 2) the communications were made in confidence; and 3) the privilege as to these communications has not been waived. The City has redacted the text of the privileged communications but did not redact the To, From, CC, and Subject fields in accordance with 950 CMR 32.06(3)(d).” In its October 11, 2023 response, the City advised, “[i]n addition to re-iterating the attorney-client privilege elements, the response provided yesterday by the City specifically states that the attorney-client privilege was not waived.” The City further advised, “[f]urthermore, cut and pasted below is a quote from HN21 of the Suffolk Construction case cited in yesterday’s communication. ‘At the same time, the privilege extends to client-attorney communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation.’” 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., Inc. v. Div. of Capital Asset Mmgt., 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. The indices shall include 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, § l0A(a). 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

David Shapiro, Esq. SPR23/2415 Page 3 October 24, 2023 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). Based on the City’s responses, I find that the City has satisfied the requirements articulated in Suffolk to withhold portions of the requested records pursuant to attorney-client privilege. Further, I find the City has provided a sufficient privilege log by leaving the header information of the communications intact. Consequently, I decline to opine on the City’s work product claim to support its redactions. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Chris Dwan