Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20250646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2025 SPR25/0646 Katherine Schuko, Esq. Associate City Solicitor Solicitor’s Office City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Schuko: I have received the petition of Grace Ferguson appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2025, Ms. Ferguson requested “memorandums of subrecipient risk assessments for the American Rescue Plan Act grant that was given to New Bedford Research and Robotics (“NBRR”).” The City responded on February 20, 2025, and again on March 6, 2025. Unsatisfied with the City’s responses, Ms. Ferguson petitioned this office, and this appeal, SPR25/0646, 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. 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

Katherine Schuko, Esq. SPR25/0646 Page 2 March 20, 2025 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 February 20th and March 6th Responses In its February 20, 2025 and March 6, 2025 responses, the City indicates that it is withholding six documents pursuant to the attorney-client privilege. 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 February 20th response, the City states the following: After conducting a search of its records, the City has identified six potentially responsive records matching the specifications provided in [Ms. Ferguson’s] February 6th request. The City withholds the records as attorney-client communications pursuant to the attorney-client privilege, as the records consist of communications between the City, the City Solicitor and the City’s outside counsel. These records are also withheld under common law as attorney opinion and work-product. In its March 6th response, the City further explains the following: As indicated in the City’s response, the withheld records are exempt from disclosure under the common law principles of attorney client privilege and work product. The records are communications between the parties (the City, the City’s

Katherine Schuko, Esq. SPR25/0646 Page 3 March 20, 2025 consultant, the City Solicitor and the City’s outside counsel) undertaken for the purpose of obtaining legal advice, made in confidence, and the privilege of these communications has not been waived. The withheld records also consist of work product. The City has applied the necessary withholdings in this case because release would be construed as a waiver of privilege. Although the City has provided some information regarding the withheld records, based on its February 20th and March 6th responses, I find the City has not met its burden in responding to this request. Specifically, the City must provide an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Grace Ferguson