Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20241220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 7, 2024 SPR24/1220 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: [R]ecords 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.] Previous Appeal This request was the subject of a previous appeal. See SPR24/0976 Determination of the Supervisor of Records (April 12, 2024). In my April 12th determination, I ordered the City to clarify its claims under the attorney-client privilege for withholding responsive records. Subsequently, the City responded on April 17, 2024, reiterating its claims under the attorney- client privilege, and providing an updated privilege log. Unsatisfied with the City’s response, the requestor further appealed, and this case was opened as a result. 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 SPR24/1220 Page 2 May 7, 2024 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. 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 April 17th Response In its April 17, 2024 response, the City reiterates its claims under the attorney-client privilege for withholding responsive records, and provides a revised index indicating it intends to withhold approximately 19 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).

Carol A. Desiderio SPR24/1220 Page 3 May 7, 2024 In its April 17th Privilege Log, the City provides an updated index which lists approximately 19 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. Additionally, the City states that “[p]rivileged and work product info relate to investigation of Jan 22, 2024 OML complaint.” Further, the City states that “[a]ll documents withheld as privileged are confidential and privilege has not been waived.” Where the City has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the City has met its burden to withhold the responsive records pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network