Brian DeLacey v. Malden, City of (SPR 20250713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2025 SPR25/0713 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Brian DeLacey, of Malden News Network, appealing the response of the City of Malden (City) and the Malden School Committee (Committee) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 11, 2024, Mr. DeLacey requested the following: [R]ecords of School Committee Meeting Minutes from Executive Sessions held on 11/13/23, 12/4/23, and 1/18/24. Please include all PUBLIC RECORDS related to these meetings which were made or received by any public official during any “STAGE” of the minutes creation and approval process: including DRAFT, REVIEW, REVISED, FINAL, APPROVED and AMENDED forms of minutes, whether posted publicly prior to this or not. This requests more than just “FINAL” or “DRAFT” minutes, and extends to any COMMENTS made on any iteration of the minutes associated with these three meetings. Please provide for this request each distinct revision of any record seen by any MEMBER of the SCHOOL COMMITTEE, extending to the MAYOR and the SUPERINTENDENT, including any and all versions of any records which are no longer allowed to be withheld or redacted. Previous Appeals This request was the subject of previous appeals. See SPR24/3427 Determination of the Supervisor of Records (January 9, 2025) and SPR25/0231 Determinations of the Supervisor of Records (February 5, 2025 and March 10, 2025). In my March 10th determination, following in camera review, I found that the City had met its burden to redact the responsive records pursuant to the attorney-client privilege, with the exception of Agenda Item 2 of the School Committee 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

Carol Ann Desiderio SPR25/0713 Page 2 March 28, 2025 Meeting Minutes of December 4, 2023, entitled “To conduct collective bargaining SEIU Local 888 Clerical Unit grievance.” Subsequently, the City responded on March 12, 2025. Unsatisfied with the City’s response, Mr. DeLacey petitioned this office, and this appeal, SPR25/0713, 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 his appeal petition, Mr. DeLacey argues the following: [T]he Malden School Committee has failed to adhere to the March 10th Order which clearly obligates detailed indices related to attorney-client privilege: “Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” [Ex01 - page 5, SPR25/0231, 3/10/25] Their response contains none. [T]he Malden School Committee fails entirely to meet another Public Records Law requirement: “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.” [Ex04 - page 2, SPR24/3427, 1/9/25] [T]he public has been informed of a vote taken, yet that vote remains hidden[.]

Carol Ann Desiderio SPR25/0713 Page 3 March 28, 2025 The City’s Responses In its March 12, 2025 response, the City provides “an unredacted portion of the School Committee Minutes of the December 4, 2023 Executive Session relating to SEIU Local 888 clerical grievance.” In its previous December 23, 2024 response, the City cited the attorney-client privilege for redacting responsive records, and in its January 22, 2025 response, an attorney for the City stated the following: The [School] Committee maintains that the redacted portions of the executive session minutes dated November 13, 2023; December 4, 2023; and January 18, 2024 and other requested materials at issue are protected from disclosure under attorney-client privilege, and/or the relied upon exemptions under the Public Records Law, G.L c. 4, § 7(26). 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 December 23rd response, the City argued the following under the attorney-client privilege: In this case, Town Counsel attended the executive session meetings on November 13, 2023, December 4, 2023, and January 18, 2024 and upon request at several points provided confidential legal advice and assistance to the Committee and Committee members on the issues presented. Accordingly, these exchanges have been redacted from the executive session minutes to preserve the attorney-client privilege.

Carol Ann Desiderio SPR25/0713 Page 4 March 28, 2025 Based on the City’s March 12th response, and in conjunction with my previous in camera inspection of the records, and the information provided in the City’s previous responses, I find the City has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. DeLacey 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Brian DeLacey