Good Citizen v. Boston, City of - Public Records (SPR 20250011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 13, 2025 SPR25/0011 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Good Citizen (requestor) 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 September 6, 2024, the requestor sought: [E]lectronic copies of all communications involving public records request R002270-060524 and/or Supervisor of Records appeal SPR24/2001. This request encompasses any documentation of such communication, including but not limited to: emails, letters, memos, text messages, transcripts of verbal discussion, audio recordings of verbal discussions, video recordings of verbal discussion, and responses to the request or appeal. This request is only for messages that explicitly include the terms R002270-060524 or SPR24/2001, but also, for example, entire email threads even if not every message explicitly mentions the aforementioned terms, and messages which use an abbreviated or differently formatted version of the request number or appeal number. To be clear, I would like all public records regarding the aforementioned request and appeal, regardless of which [C]ity representative was involved in the communication, and whether the communication was wholly internal or involved outside parties, and whether a public official was the initiator or recipient of a communication. The time window in which to search for these communications is between June 4th, 2024 and the time of request response/fulfillment. I request not only the body content of such messages but also any available timestamps for such messages, file attachments for electronic communications, and the relevant contact information of public employees and [C]ity representatives involved in these correspondences (e.g. email addresses, phone numbers, mailing addresses). 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. SPR25/0011 Page 2 January 13, 2025 Prior Appeal This request was the subject of a prior appeal and was provided the following reference number R003614-090624 for tracking purposes. See SPR24/2819 Determination of the Supervisor of Records (October 28, 2024). In my October 28th determination, I ordered the City to provide a response to the requestor. The City provided a response on December 24, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR25/0011, 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. 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 the appeal, the requestor states, “[t]he responsive records provided by Shawn only include messages received by the city of Boston, either by the requestor (bproxy2@proton.me), or members of the Supervisor of Records office… However, message sent by representatives of the City of Boston to third parties were not included. I know for a fact that [an identified individual] sent messages to [identified email addresses]. These messages fall under the language of the request and should have been included. While I am aware of these messages because I was privy to them, there may be additional public records responsive to this request that have not been released, and which should be released.” The City is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in

Shawn A. Williams, Esq. SPR25/0011 Page 3 January 13, 2025 response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided by the requestor, it is unclear whether the City possesses additional responsive records. The City must clarify this. The City’s December 24th Responses In its December 24, 2024 response, the City cited the attorney-client privilege to withhold responsive records. 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 (2017); see also Hanover Ins. Co. v. Rapa & 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). Under the attorney-client privilege, the City states, “[t]he withheld records consist solely of communications between City employees and their attorneys. Such records contain information between an attorney and client related to ‘the client’s search for legal advice from the attorney in his capacity as such.’ All of these communications ‘were made in confidence.’ In all cases ‘the privilege as to these communications has not been waived.’ The Client is the City of Boston.” 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. Therefore, the City must provide a privilege log in

Shawn A. Williams, Esq. SPR25/0011 Page 4 January 13, 2025 accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Good Citizen