Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20240976)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 12, 2024 SPR24/0976 Carol A. Desiderio Records Access Officer City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Malden News Network (“requestor”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2024, the requestor sought the following records: Please provide records created or received from 1/1/24 to the date of your response to this request by any City Council member or [a named attorney] related to an Open Meeting Law Complaint involving the City Council, as dated 1/22/24. Relevant records may be characterized as the following: [1.] Email with any attachments [2.] Text Messages [3.] Lists, Documents, Exhibits, Tables, Spreadsheets, Reports (Draft and Final) containing outlines, questions, compilations of responses, of results and analysis [4.] All records related to a 2/20/24 document by [the attorney], with specificity of conversations and summary of supporting statements related to [numerous quotations.] The City responded on March 28, 2024, providing numerous responsive records, and citing the attorney-client privilege to withhold others. Unsatisfied with the City’s response, the requestor 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 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

Carol A. Desiderio SPR24/0976 Page 2 April 12, 2024 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. 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s March 28th Response In its March 28, 2024 response, the City provides numerous responsive records, and provides an index indicating that it intends to withhold approximately 18 documents pursuant to the attorney-client privilege. 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). In its March 28, 2024 response, the City provides an index which lists 18 documents being withheld under the attorney-client privilege. For each document, the City lists the names of the author, the recipients, the date of the communication, and a description of the record. The City also states that “[p]rivileged and work product info relate to investigation of Jan 22, 2024 OML complaint.”

Carol A. Desiderio SPR24/0976 Page 3 April 12, 2024 Although the City has provided information on the records listed in its index, the City has not explained whether the communications were made in confidence, and has not confirmed whether the privilege as to the communications has been waived. See Suffolk, 449 Mass. at 450 n.9. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Malden News Network