Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20240773)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0773 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… Prior Appeal This request was the subject of a prior appeal. See SPR24/0247 Determination of the Supervisor of Records (February 7, 2024). In my February 7th determination, I found that the City must provide additional information regarding how the records are exempt from disclosure under the Public Records Law. 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 SPR24/0773 Page 2 March 26, 2024 The City responded on February 22, 2024. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this case, SPR24/0773, 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. 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 February 22nd Response In its February 22, 2024 response, the City cites Exemption (d) of the Public Records Law and the attorney-client privilege to withhold the responsive records. Current Appeal In her appeal petition, Ms. Ortiz states: The City of Lowell[’s] … substantive response to SPR24/0247… was very vague. As well as it failed to retrieve additional responsive records, failed to state any applicable exemptions and instead blankets exemptions without satisfying any of the prong tests, and failed the specific details necessary to consider their privilege log adequate given so many additional records were missing. Further even its City of Lowell SPR24-0247 Response.pdf response pdf was clearly a created photocopy of the original records response which was never produced to me, this record is in the wrong electronic formats and not the original copy that the city archived. The City of Lowell et al, further failed to address the actual additional responsive records that exist… The City of Lowell et al’s vague [response]… as well as its inadequate privilege log to SPR24/0247… and failed to produce or specifically detail in the “...LOG”, failed to state any applicable exemptions and instead blankets exemptions without satisfying any of the prong tests… [Office/Litigation Manager] does not have a law license, nor is [the City Clerk] considered in any way [Office/Litigation Manager’s] “privileged legal client”, nor can [Office/Litigation Manager] give out “legal advice”, therefore this communication is no way in any way considered privileged in any way legally

John Pyers SPR24/0773 Page 3 March 26, 2024 having 3rd parties participating… I am appealing the 2/22/24 City of Lowell et al et al substantive response and inadequate privilege log… as well as [the City’s] failure to produce responsive records that exist… 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, § 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). Under Exemption (d), the City states, “this relates to an ongoing legal and policy matter currently under review at this time… Here, the records relate directly to strategy related to active legal and policy matters within an ongoing deliberative process regarding the creation of a policy to streamline and enhance the effectiveness of responses to public records requests, which remains ongoing at this time.” The City is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the City must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the City has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties

John Pyers SPR24/0773 Page 4 March 26, 2024 and only applies to governmental agencies or consultants). It is additionally uncertain how disclosure of the records would taint the ongoing deliberative process. The City must clarify these matters. 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 provided a privilege log, and stated the following: [O]ne (1) document (email) withheld on the basis of attorney-client privilege is protected by attorney-client privilege because of the following: it was sent by [an identified] City Clerk to [a named] City Solicitor and Office/Litigation Manager . . ., it contains a question concerning the provision of legal advice, the communication was made in confidence, and the privilege was not waived… It is the City’s position that the communication contains information protected by the attorney-client privilege sent for the purposes of obtaining legal advice on particular matters for which the privilege has not been waived, and thus such information has been withheld accordingly. Specifically, in this instance, as described above, the communication was made in connection with the provision of legal advice, it was sent from the head of a municipal department to the Law Department, and there was no waiver of privilege. Therefore, attorney-client privilege applies to this document being withheld. Any disclosure of this document has the potential to damage the attorney-client relationship in such a way that it may discourage municipal government officials from attempting to obtain legal advice essential to the faithful discharge of their duties. Government officials must have the ability to acquire legal advice concerning their duties

John Pyers SPR24/0773 Page 5 March 26, 2024 without fear that their questions or communications will be disclosed to the public… Upon review, the City has satisfied the requirement 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, because the City explained that “the communication was made in connection with the provision of legal advice, it was sent from the head of a municipal department to the Law Department…” Further, the City explained that “the communication was made in confidence…[,]” and confirmed that “. . . there was no waiver of privilege.” Additionally, the City has provided a detailed description of the record, including the names of the author and recipients, the date, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed in its February 22nd response. Therefore, I find the City has met its burden to withhold the email under the attorney- client privilege. Possession, Custody, or Control The City is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on Ms. Ortiz’s appeal, it is unclear whether the City possesses additional records responsive to Ms. Ortiz’s request. The City must clarify this. 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.