Joan P. Beckta v. Everett, City of - Solicitor's Office (SPR 20232931)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2931 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 January 10, 2023, Ms. Beckta requested “[a]ll the bills from GreenbergTraurig pertaining or purporting to pertain to the inquiry… by the U.S. Attorney’s Office and the Dept. of Justice, for which GreenbergTraurig applied for payment and which was on the Agenda for the 11/15/22 City Council meeting.” Prior Appeal This request was the subject of a previous appeal. See SPR23/0219 Determination of the Supervisor of Records (February 17, 2023). In my February 17th determination, I found that the City did not meet its burden to redact records under Exemption (a) of the Public Records Law, and did not provide a sufficient privilege log in accordance with G. L. c. 66, § 10A(a). The City provided responses on February 28, 2023, April 18, 2023, and November 30, 2023. Unsatisfied with the responses, Ms. Beckta petitioned this office and this appeal, SPR23/2931, 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, § l0A(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

Colleen M. Mejia, Esq. SPR23/2931 Page 2 December 18, 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(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 City’s Responses In its February 28, 2023 response, the City cited attorney-client privilege to redact records. In its April 18, 2023 response, the City stated, “[i]n response to [SPR23-0219], the City responded on February 28, 2023…” In its November 30, 2023 response, the City stated, “[t]he City did comply with the Secretary’s determination on April 18, 2023 in an email to [a named individual], who is the attorney for the Public Records Division. [Ms. Beckta was] cc’d on this email[.]” 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). In its February 28, 2023 response, the City stated: Please be advised that the City is redacting portions of legal invoices provided to the City, as specified below, which are not subject to disclosure under the Public Records Law, as they constitute privileged communications between City officials and its outside legal counsel engaged by the City on June 9, 2022 to provide legal

Colleen M. Mejia, Esq. SPR23/2931 Page 3 December 18, 2023 services. Where the City or its employees and officials receive information from legal counsel, in confidence, such discussions and any documents reflecting advice from its counsel would be protected from disclosure under the attorney- client privilege. Please be advised that certain records, as specified below, constitute privileged information between City officials and its attorneys for the purpose of obtaining legal advice, for which the attorney-client privilege has not been waived, and therefore, such records may be withheld pursuant to the attorney-client privilege… Specifically, the City is withholding the confidential communications/information as specified below: [1.] The narrative portions of legal invoices dated August 24, 2022, September 15, 2022, October 6, 2022, and November 3, 2022 that detail advice and counsel between City officials and the City’s special legal counsel on legal matters for which the privilege has not been waived. In her appeal petition, Ms. Beckta states, “the investigation was closed in August… an invoice should not contain privileged information.” Although the City provides some information regarding these records, I find that in accordance with G. L. c. 66, § 10A(a), the City must provide a privilege log 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.” The City must clarify this matter. 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta