Alex Marthews v. Boston, City of - Public Records (SPR 20241704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2024 SPR24/1704 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Alex Marthews, of MuckRock News, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2023, Mr. Marthews requested the following records: A copy of any materials, including presentations, brochures, emails, images or other information, used in training fusion center employees on 28 CFR Part 23.20 (‘CRIMINAL INTELLIGENCE SYSTEMS OPERATING POLICIES --- Operating principles’). DHS monitors whether fusion center employees receive training in these materials, and how often. A previous public records request (PRR B000036-010821) disclosed that such trainings have in fact occurred at the Boston Regional Intelligence Center. Prior Appeal This request was the subject of a prior appeal. See SPR23/1193 Determination of the Supervisor of Records (June 16, 2023). In my June 16th determination, I found that the City had not met its burden to withhold records under the attorney-client privilege and that it must clarify if additional responsive records exist. The City provided a response on July 11, 2023. Unsatisfied with the response, Mr. Marthews petitioned this office, and this appeal, SPR24/1704, 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

Shawn A. Williams, Esq. SPR24/1704 Page 2 June 21, 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. 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 July 11th response In its July 11, 2023 response, the City withheld the responsive records under the attorney- client privilege. Current Appeal In his appeal, Mr. Marthews states the following: Regarding the training materials as provided by NCIRC, it is not sufficient for an agency simply to state that the NCIRC-authored materials are “proprietary” or that access to them was intended to be “limited to law enforcement agencies.” If that were a valid exemption, then any government agency could make any document exempt by simply indicating that the general public is not the intended audience. However, the City has already waived that argument with respect to these specific records, because [the City] previously supplied a link to a login page for these materials to us - albeit without a user ID or password - in the expectation that by providing that link, [the City] would be adequately responding to this record request. When [the City] did that, [it] was conveying that it would be proper for the public to view these materials, in response to a properly formulated public records request. He therefore cannot now reverse course and claim that these records are not in fact in their “custody or control.” He is able to access them, and is capable of supplying them, and NCIRC is itself a public agency… Regarding the slide relating to 28 CFR Part 23 in BRIC’s internal training to its personnel… The training given to BRIC personnel on the interpretation of 28 CFR Part 23 is key to public understanding of how BRIC operates, and likely constitutes a “statement of policy” or “interpretation.” Texts describing or interpreting established policies, that are provided in standard annual trainings,

Shawn A. Williams, Esq. SPR24/1704 Page 3 June 21, 2024 are appropriate for public disclosure, even if the employees of the public agency are trained on those policies by an in-house attorney. General “annual training” provided by an attorney to law enforcement personnel on what the law means is not exempt… [The City’s] response to us does not meet the requirements [of the attorney-client privilege]… While what [the City] has provided does indeed cover “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] has not provided this as part of a pre-existing “itemized and indexed document log”… 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 April 14, 2023 response the City stated the following: The responsive records relate to BRIC personnel annual training on 28 CFR Part 23. In addition, BRIC personnel receive annual training from the attorney assigned to the BRIC, which includes discussion on 28 CFR Part 23. On or around November 16, 2022, BRIC attorney, . . . authored and created a powerpoint presentation for this training. These materials are withheld in full and exempt from production under the attorney-client privilege. See e.g., Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007) (confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege). These materials were created by the attorney assigned to the BRIC, presented to BRIC personnel, and for the purpose of providing legal

Shawn A. Williams, Esq. SPR24/1704 Page 4 June 21, 2024 advice. See G.L. ch. 66, § 10A(a). The client is the BRIC and the privilege has not been waived. Under the attorney-client privilege, in its July 11th response, the City stated the following: All BRIC personnel attend annual in house training regarding Privacy, Civil Rights, and Civil Liberties. These training materials include a PowerPoint presentation authored by BRIC Attorney [a named individual] for the purpose of providing legal advice to BRIC personnel. One slide of the presentation is regarding 28 CFR Part 23; the balance of the presentation is not responsive to the request. The single slide of the presentation regarding 28 CFR Part 23 that is responsive to this request is withheld and protected by the attorney-client privilege. [1.] Date of record: Created on or around November 16, 2022 [2.] Author and recipients: BRIC Attorney [a named individual] for personnel assigned to the BRIC [3.] General description of contents: PowerPoint presentation for annual training provided to BRIC personnel entitled “Privacy, Civil Rights, and Civil Liberties.” One slide of the presentation is regarding 28 CFR Part 23; the balance of the presentation is not responsive to the request. [4.] Reason for withholding: These materials are withheld in full and exempt from production under the attorney-client privilege… These materials were created by the attorney assigned to the BRIC, presented to BRIC personnel, and for the purpose of providing legal advice. See G.L. c. 66, § 10A(a). There are no other documents. I find that the City has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the City must clarify that the communications were made in confidence. Additionally, the City is advised that G. L. c. 66, § 10A(a) requires that a records custodian provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Although the City provided the name of an individual, it is uncertain who the author and recipients are in the privilege log as provided. As such, the City must provide the names of the author and recipients of the communications in accordance with G. L. c. 66, § 10A(a). Additional records In its July 11th response, the City stated, “[t]he Supervisor found the City must explain whether any other records exist. I contacted the Boston Police BRIC for additional information regarding this request. All BRIC personnel complete annual training on 28 CFR Part 23… These

Shawn A. Williams, Esq. SPR24/1704 Page 5 June 21, 2024 materials are proprietary and authored and maintained by the Bureau of Justice Assistance (BJA). BJA limits access to their training materials to law enforcement agencies. The materials are not otherwise in the Department’s care, custody, or control.” Where the City has confirmed that it does not possess any additional records responsive to the March 17th request, and has no duty to create records responsive to the request, I find that this portion of Mr. Marthews’ appeal is resolved. Conclusion Accordingly, the City is ordered to provide Mr. Marthews with a response to his request 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. Mr. Marthews may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alex Marthews