Neily Soto v. Methuen, City of - Office of the City Solicitor (SPR 20243239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2024 SPR24/3239 Kenneth J. Rossetti, Esq. City Solicitor City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Rossetti: I have received the petition of Neily Soto appealing the response of the City of Methuen (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 8, 2024, Ms. Soto requested a copy of a finding by counsel to the City. Previous Appeal This request was the subject of a previous appeal. See SPR24/2921 Determination of the Supervisor of Records (October 28, 2024). I closed my October 28th determination with the understanding that the City would provide Ms. Soto with a response. The City provided a response on November 1, 2024. Unsatisfied with the response, Ms. Soto petitioned this office and this appeal, SPR24/3239, 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 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

Kenneth J. Rossetti, Esq. SPR24/3239 Page 2 December 16, 2024 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 November 1st Response In its November 1, 2024 response, the City informed Ms. Soto that it was withholding the responsive record pursuant to the attorney-client privilege. Current Appeal In her December 2, 2024 petition to this office, Ms. Soto objected to the City’s withholding of the responsive record, “… as this document is now 11 years old and should qualify as a public record.” 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). In its November 1st response, the City provided a detailed description of the responsive record in accordance with G. L. c. 66, § 10A(a), 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. Specifically, the City stated:

Kenneth J. Rossetti, Esq. SPR24/3239 Page 3 December 16, 2024 In this instance, the August 9, 2013 counsel correspondence, for which you seek public disclosure, constitutes an attorney-client privileged communication that warrants continued confidential handling under Suffolk Construction … [An identified attorney] communicates legal advice to City officials (City Clerk and Board of Registrars) regarding a complaint submitted to the Board of Registrars regarding [an identified individual’s] ability to serve an unexpired term on the Methuen School Committee. [An identified attorney] likewise furnishes advice to the Clerk and the Board regarding the handling of the upcoming Board hearing on that complaint. Additionally, since the entire correspondence imparts confidential legal advice, the correspondence cannot be produced in redacted form, with non-privileged content revealed, because the five-page letter is completely privileged from public disclosure … In an email communication to this office on December 5, 2024, the City reiterated its position and provided further clarification, stating: The Appellant bases her appeal on the passage of eleven (11) years between the attorney’s confidential correspondence to the City, and the Appellant’s request for public disclosure of the attorney’s correspondence. Notably, the Appellant does not object to the City’s identification and description of the withheld document; indeed, there can be no such objection because the City lawfully detailed what the City withheld, in accordance with MGL c. 66, Section 10(b)(iv). Further, the Appellant does not allege waiver of the attorney-client privilege; and the City’s November 1, 2024 letter details why there was no waiver of the privilege … This passage of time does not vitiate the attorney-client privilege because Massachusetts courts have long held that the attorney-client privilege endures even after the death of the client. See In the Matter of John Doe Grand Jury Investigation, 408 Mass. 480, 483 (1990) (“… the attorney-client privilege survives the client’s death. Survival of the privilege is the clear implication of this court’s early pronouncements that communications subject to the attorney-client privilege ‘cannot be disclosed at any future time,’ see Foster v. Hall, supra at 93, and that the ‘mouth of the attorney shall forever be sealed’”) (quoting Hatton v. Robinson, 14 Pick. 416 (1833)). Based on the City’s response, I find that it has met its burden to withhold the requested record pursuant to the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Soto is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Kenneth J. Rossetti, Esq. SPR24/3239 Page 4 December 16, 2024 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Neily Soto