Jeremy Berry-Cahn v. Marlborough, City of - City Clerk (SPR 20243190)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3190 Steven W. Kerrigan City Clerk City of Marlborough 140 Main Street Marlborough, MA 01752 Dear Mr. Kerrigan: I have received the petition of Jeremy Berry-Cahn appealing the response of the City of Marlborough (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 14, 2024, Mr. Berry-Cahn requested “… copies of any incoming or outgoing emails [sent] or received by the City’s legal department between October 8th 2024 and November 11th 2024, which relate to the public records request docketed ‘2024-0292’ …” The City provided a response on November 25, 2024. Unsatisfied with the response, Mr. Berry-Cahn petitioned this office and this appeal, SPR24/3190, 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 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. Att’y 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. 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

Steven W. Kerrigan SPR24/3190 Page 2 December 10, 2024 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 November 25th Response In its November 25, 2024 response, the City provided 12 pages of responsive records, redacted “… based on attorney-client privilege which protects confidential communications to/from an attorney in connection with the provision of legal advice.” Current Appeal In his November 25, 2024 petition to this office, Mr. Berry-Cahn objected to the City’s redactions, claiming that it was “… far too liberal in [its] redacting of the responsive documents.” In an email communication to this office on December 4, 2024, the City reiterated its position that its redactions were necessary under the attorney-client privilege, stating: These e-mails constitute communications between the Legal Department (city attorney, paralegal) and other city departments in connection with assisting with preparing a response to the public records request under state law. The internal communications were made in confidence and the privilege has not been waived. The City maintains the records were appropriately redacted. 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 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).

Steven W. Kerrigan SPR24/3190 Page 3 December 10, 2024 In this case, although the text of the responsive email communications was redacted, the City has left intact the email header information, which included the names of the author and recipient(s), the date and subject of each email. Based on the email header information and the explanations provided in the City’s November 25th and December 4th communications, I find that the City has met its burden to redact these responsive records pursuant to the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Berry-Cahn 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Berry-Cahn