Jacquelyn Wehtje v. Fitchburg, City of (SPR 20242824)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2824 Joanna Bilotta City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta: I have received the petition of Jacquelyn Wehtje appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 6, 2024, Ms. Wehtje requested the following: [A]ll documents from June 2024 pertaining to these items: [1.] Halstead records request including but not limited to all June 18, 2024 documents of any kind including their attachments. These would include correspondence between [four individuals]. [2.] All records pertaining to “Ag Comm and tax taking parcel” listed on the 6/21/24 entry on the [specified] invoice... Previous Appeal This request was the subject of a previous appeal. See SPR24/2580 Determination of the Supervisor of Records (September 27, 2024). In my September 27th determination, I ordered the City to provide Ms. Wehtje with a response to the request. Subsequently, the City responded on October 11, 2024. Unsatisfied with the City’s response, Ms. Wehtje petitioned this office, and this appeal, SPR24/2824, 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 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

Joanna Bilotta SPR24/2824 Page 2 October 25, 2024 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. Current Appeal In her appeal petition, Ms. Wehtje contends that she has “still not received any records” and argues that “[t]ax takings are not protected information.” The City’s October 11th Response In its October 11, 2024 response, the City seeks clarification regarding Item 1 of the request, and cites Exemption (d) and the attorney-client privilege for withholding records responsive to Item 2 of the request. See G. L. c. 4, § 7(26)(d). 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).

Joanna Bilotta SPR24/2824 Page 3 October 25, 2024 The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. 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 October 11th response, the City provides a privilege log identifying two records that it intends to withhold under the attorney-client privilege, and includes the dates, authors, recipient, descriptions of the records, and the basis on which the privilege is being claimed. In addition, the City argues the following: As to the second item [of the request], the responsive records have been withheld as they constitute (1) the confidential communications between the Town and its legal counsel undertaken for the purpose of obtaining legal advice or assistance; (2) attorney opinion work product sought in anticipation of or during the pendency of litigation; and/or (3) certain attorney fact work product under Mass. R. Civ. P.26(b)(3) that was prepared in anticipation of litigation or trial. See G. L. c. 4, § 7(26)(a) and (d); Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007); DaRosa v. City of New Bedford, 471 Mass. 446, 459 (2015). Where the City has provided a detailed description of each record withheld pursuant to

Joanna Bilotta SPR24/2824 Page 4 October 25, 2024 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. Where the City may withhold the records under the attorney-client privilege, I find it is unnecessary to opine on the City’s claim under Exemption (d). Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” (emphasis in original). Id. In its October 11th response, the City states the following: As to the first item in your request, in accordance with G. L. c. 66, § 10(b)(vii), the City requests that you modify the scope of your request as follows because doing so will allow us to produce the responsive records more efficiently and more affordably: (1) specify which individual(s) with the last name of “Halstead” you are referring to – there are many in Fitchburg; (2) define what type of records request you are referring to – again, there are many; and (3) define what you mean by “June 18, 2024 documents of any kind” – it is unclear whether you are referring to documents related to a matter that occurred on that date or documents that were created on that date. Based on Ms. Wehtje’s original written request, and in conjunction with the information provided in the City’s October 11th response, I find it is unclear what specific records Ms. Wehtje is seeking in Item 1 of her request. Consequently, Ms. Wehtje may wish to clarify her written request in order to reasonably describe the requested records. See G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Wehtje wishes to submit an additional public records request to the City, and is unsatisfied with the response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Joanna Bilotta SPR24/2824 Page 5 October 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje Alexander Castro, Esq.