Colman Herman v. Boston Water & Sewer Commission (SPR 20251100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1100 Dolores Randolph Records Access Officer Boston Water and Sewer Commission 980 Harrison Avenue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2025, Mr. Herman requested the following: [1] [T]he ledger of the Boston Water and Sewer Commission for the period January 1, 2024 to the present. [2] [C]opies of any and all settlement agreements, exit agreements, separation agreements, letter agreements, and/or the like executed by the Boston Water and Sewer Commission ... from January 1, 2020 to the present. The Commission responded on April 17, 2025. Unsatisfied with the Commission’s response, Mr. Herman petitioned this office, and this appeal, SPR25/1100, 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. 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

Dolores Randolph SPR25/1100 Page 2 May 5, 2025 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. The Commission’s April 17th Response In its April 17, 2025 response, the Commission provides a link to a website which it claims is responsive to Part 1 of the request, provides one record responsive to Part 2 of the request, and cites Exemption (a) of the Public Records Law and the attorney-client privilege for withholding another record responsive to Part 2. See G. L. c. 4, § 7(26)(a). In his appeal petition, Mr. Herman seeks that this office “order the Boston Water and Sewer Commission to produce the ledger and the withheld settlement agreement.” Part 1 With regard to Part 1 of the request, the Commission provides a link to a website and explains that “the Commission posts its annual financial statements and other related financial documentation online at [a specified] link ... Information for the 2024 calendar year has not yet been prepared but is typically made available in late summer or early fall during the following calendar year.” In his appeal petition, Mr. Herman contends that “a ledger is a ‘book containing accounts to which debits and credits are posted from books of original entry.’ ... [N]o such document is posted on BWSC’s website.” Records in Existence; Possession, Custody, or Control Please be 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in 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 Commission’s response, and the clarification provided in Mr. Herman’s appeal petition, it is unclear whether the Commission possesses records responsive to Part 1 of Mr. Herman’s request. If the Commission does possess additional responsive records, it must

Dolores Randolph SPR25/1100 Page 3 May 5, 2025 either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Part 2 In its April 17th response, the Commission explains the following regarding Part 2 of the request: The Commission has entered into two such settlement agreements during this period of time and has enclosed one of those settlement agreements with this response. The Commission is withholding the other settlement agreement that contains a confidentiality provision that would result in a breach of contract by the Commission if it were produced in response to a public records request. See M.G.L. ch. 4, § 7 (exempting from public records requests documents that are “specifically or by necessary implication exempted from disclosure by statute”); cf. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 446, 457-58 (2007) (finding records containing attorney-client privileged communications exempt from disclosure under Massachusetts public records law, even though not specifically exempted by statute, because there was no evidence that the Legislature intended to “abrogate” protections from disclosure based in “common law” of such “fundamental and longstanding importance” when it passed the public records law). Indeed, it would be an absurd result for the Massachusetts public records law to require the Commission to produce a record that, by its very production, would render the Commission liable for a breach of contract. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Dolores Randolph SPR25/1100 Page 4 May 5, 2025 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Based on the Commission’s response, it is unclear which statute or statutes the Commission is referring to under Exemption (a) in order to withhold the responsive record. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). The Commission must clarify what statute it claims either specifically, or by necessary implication, permits withholding of the responsive record, and must explain with specificity how such a statute applies. See G. L. c. 4, § 7(26)(a). 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). Based on its April 17th response, I find the Commission has not met its burden in claiming the attorney-client privilege to withhold the responsive record. Specifically, the Commission 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.

Dolores Randolph SPR25/1100 Page 5 May 5, 2025 See G. L. c. 66, § 10A(a). Further, the Commission must clarify whether the communication was made during a client’s search for legal advice from an attorney in his or her capacity as such, whether the communication was made in confidence, and whether the privilege as to the communication has been waived. Conclusion Accordingly, the Commission is ordered to provide Mr. Herman 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. Mr. Herman may appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman