Melody Anderson v. Worcester Housing Authority (SPR 20242029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2029 Suzanne Chung, Esq. General Counsel Worcester Housing Authority 630A Plantation Street Worcester, MA 01605 Dear Attorney Chung: I have received the petition of Melody Anderson appealing the response of the Worcester Housing Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 2024, Ms. Anderson requested the following records: - [Her] entire file - All notes internally - All internal & external communication with 3rd parties - Evidence of allegations - [Her] rights to object - WHA grievance policy - WHA civil rights policy - WHA VAWA policy - WHA portability policy - WHA reasonable accommodation policy - WHA appeal policy - WHA admin plan - Board of Commissioners contact information Previous Appeal This request was the subject of a previous appeal. See SPR24/1322 Determination of the Supervisor of Records (May 15, 2024). In my May 15th determination, I ordered the Authority to provide Ms. Anderson with a supplemental response. Subsequently, the Authority responded on May 28, 2024. Unsatisfied with the Authority’s response, Ms. Anderson petitioned this office, and this appeal, SPR24/2029, 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

Suzanne Chung, Esq. SPR24/2029 Page 2 July 29, 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 Authority’s May 28th Response In its May 28, 2024 response, the Authority provides numerous responsive records, and indicates that it is withholding others 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).

Suzanne Chung, Esq. SPR24/2029 Page 3 July 29, 2024 In its May 28th response, the Authority provides an index listing approximately five records withheld under the attorney-client privilege, including the dates, author, recipients, substance, and grounds for claiming the privilege. In its index, the Authority also confirms that the communications include “request[s] for advisement” and are confidential. Where the Authority has provided a detailed description of each record withheld pursuant to the attorney- client privilege, as required under G. L. c. 66, § 10A(a), and based on the information provided in its index, I find the Authority 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 Ms. Anderson 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: Melody Anderson