Good Citizen v. Boston, City of - Public Records (SPR 20250013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 14, 2025 SPR25/0013 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 November 18, 2024, the requestor sought: [1] The messages/alerts sent by [an identified individual] ‘representatives from the department[s]’ in regards to public records requests #R002270-060524 and #R003614-090624. [2] Documents showing first names, last names, email addresses, public phone numbers if applicable, salaries, job titles, and dates of employment for all personnel involved as senders or recipients in the messages/alerts from item 1 above. [3] Documents showing first names, last names, email addresses, public phone numbers if applicable, salaries, job titles, and dates of employment for records custodian(s) for the ‘department[s]’ referred to by [an identified individual] in item 1 (for any such personnel that are not already included in item 2). The City provided a response on December 24, 2024, and provided the following reference number R004762-111824 for tracking purposes. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR25/0013, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR25/0013 Page 2 January 14, 2025 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, “[i]f no single document contains all the relevant information, I would consider a combination of multiple records to be responsive. Additionally, if not all of the requested items are available, partial information would be better than nothing. However, I find it hard to believe the City’s claim in their December 24th response that ‘there are no records responsive to request 2 or 3.’” The City’s December 24th Responses Item 1 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.

Shawn A. Williams, Esq. SPR25/0013 Page 3 January 14, 2025 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 forty-four (44) email records responsive to Request 1 consist of attorney-client privileged communications…. The 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 the privilege log in accordance with G. L. c. 66, § 10A(a). Items 2 and 3 Regarding Item 2 and 3 of the request, the City states, “[t]here are no records responsive to Request 2 or 3.” Where the City confirmed that it does not possess records responsive to the requestor’s request for Items 2 and 3, and has no duty to create records responsive to the request, I find that the requestor’s appeal regarding these portions of the request is resolved. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request for Item 1, 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.

Shawn A. Williams, Esq. SPR25/0013 Page 4 January 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Good Citizen