Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20240247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2024 SPR24/0247 John Pyers Executive Secretary & Records Access Officer City of Lowell License Commission City Hall 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Mr. Pyers: I have received the petition of Laura Ortiz appealing the response of the City of Lowell (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, 2024, Ms. Ortiz requested the following: 1. A copy of all forwardings regardless what electronic forwarding method (email, text or other) for the following email in their original native electronic formats for the following email: a. Subject: 12/15/23 Open Meeting Law Complaints regarding Open Meeting Law Violations of Agenda and Meeting Notices, Meeting Minutes as well as violations of Executive Sessions and Duty or Delegation Areas and Draft/Meeting Minutes during the Lowell City Council Meetings; OML Complaint #1 and OML Complaint #2… 2. [A]ny additional forwardings of Part 1 regardless what electronic forwarding method (email, text or other) for the following email in its original native electronic formats from the following employees or elected officials that may have forwarded a copy of this entire OML complaint dated 12/15/23… The City responded on January 11, 2024. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this case, SPR24/0247, 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 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

John Pyers SPR24/0247 Page 2 February 7, 2024 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. 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 January 11th Response In its January 11, 2024 response, the City states, “there are documents being withheld on the basis of attorney-client privilege, and documents are also being withheld that are protected from disclosure by exemption (d) of the Public Records Law.” Current Appeal In her appeal petition, Ms. Ortiz states, “[the City] produced one partial record a single email… [The City] refuses to state how many responsive records it is withholding or for which individuals. The City instead stated blanket vague exemptions… The City failed to state appropriately how the exemptions or which one actually applied and for which responsive records withheld, nor did it state whether any of the correspondence was actually used for the purpose of obtaining legal advice or assistance or for a court case…. [The City] failed to give us any privilege log for any of these withheld correspondences…” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, §

John Pyers SPR24/0247 Page 3 February 7, 2024 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). 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). 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. See also 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). 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. To deny access to 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). Here, the City withheld responsive records without identifying any of the records. Therefore, the City must identify what type of records it has in its possession that the City withheld. Further, the City merely cites Exemption (d) of the Public Records Law and the attorney- client privilege without any explanation of their applicability to the responsive records. The City must provide additional information regarding how the records are exempt from disclosure under

John Pyers SPR24/0247 Page 4 February 7, 2024 the Public Records Law. 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. Ortiz with a response to her 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: Laura Ortiz Garrett Beaulieu, Esq.