Evan Moses v. Gloucester, City of - Legal Department (SPR 20252420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2420 Suzanne P. Egan, Esq. General Counsel City of Gloucester 9 Dale Avenue Gloucester, MA 01930 Dear Attorney Egan: I have received the petition of Evan Moses appealing the response of the City of Gloucester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 11, 2025, Mr. Moses requested: [1] A complete and unredacted copy of the City[’s] current contract or agreement with Republic Services including any addenda, amendments, performance clauses, renewal provisions, payment schedules, or supporting materials[;] [2] For the time period of June 1, 2025 to present: [a] All emails, letters, memos, text messages, or other forms of correspondence exchanged between any city official, employee, department, or representative and Republic Services[;] [b] [I]nclud[ing] communications via: City-issued email accounts or phone numbers[;] City-issued cell phones or landlines[;] [p]ersonal email addresses or personal phone numbers if used by conducting official city business[;] [3] Incoming and outgoing phone call logs involving Republic Services and any City office, department, or official—including, but not limited to, landlines, cell phones, and departmental extensions. Where available, include caller/recipient identities and associated department or position, especially for city-issued phones or extensions[;] [4] For the time period of June 1, 2025 to present: [a] Internal communications between city departments, agencies, or officials referencing Republic Services or waste collection services, including: [i] Emails, memos, letters, and interoffice communications[;] [ii] Text messages or informal correspondence between city staff[;] 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

Suzanne P. Egan, Esq. SPR25/2420 Page 2 August 29, 2025 [iii] Internal phone call records pertaining to Republic Services[;] [5] All records related to any unforeseen or supplemental labor, resource, or operational costs incurred by the City or its departments—especially the Department of Public Works—arising from service disruptions or performance gaps by Republic Services[;] [a] This includes, but is not limited to: [i] Use of city employees or agents to perform trash collection or related services[;] [ii] Increased fuel usage, equipment wear, or operational strain related to substitute services [iii] Overtime records for city workers involved in compensating for any lapses in contracted waste management[;] [iv] Any internal discussion or documentation of cost-tracking measures, budgetary impacts, or estimates of financial burden[;] [v] Any records of attempted or planned cost recovery efforts, such as formal demands to [an identified entity] or consultations with legal counsel regarding cost reimbursement[;] [6] Any and all correspondence, documentation, or directives involving Gloucester city legal counsel relating to Republic Services, including: [a] Contract drafting, negotiation, or review[;] [b] Notices of breach, service complaints, or legal concerns[;] [c] Demand letters or other legal remedies concerning service obligations[.] Prior Appeal This request was the subject of a prior appeal. See SPR25/2281 Determination of the Supervisor of Records (August 15, 2025). In my August 15th determination, I found that the City had provided Mr. Moses with a supplemental response on August 15, 2025. Unsatisfied with the response, Mr. Moses petitioned this office and this appeal, SPR25/2420, 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

Suzanne P. Egan, Esq. SPR25/2420 Page 3 August 29, 2025 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 City’s August 15th Response In its August 15, 2025 response, the City provided support for its claim that responsive records were exempt from disclosure under the attorney-client privilege. The City further stated that it was “unable to identify phone logs or records responsive to this request as phone logs do not identify the subject matter or content of the phone call. Additionally, in most instances phone logs do not identify the party making the phone call or receiving the call.” Current Appeal In his August 15, 2025 petition to this office, Mr. Moses contended that the City had failed to properly search for phone logs responsive to his request. Mr. Moses amended his request to seek the following records: [A]ll incoming and outgoing logs between any city-issued phone line and any number or point of contact known to the City pertaining to Teamsters Local 25 or Republic Services … [T]he requested phone records include the following fields: date, time, duration, originating number, receiving number, and extension, as reflected in the City’s call detail records (CDRs), carrier billing records, or PBX system logs for City- issued mobile devices, desk phones, and City Hall PBX extensions assigned to relevant officials and departments. Responsive records include all calls between any City-issued line and any known Republic Services or Teamsters Local 25 contact number within the defined period. Mr. Moses further requested that the City be ordered to search personal devices for any records made or received by City officials in the course of public business. Mr. Moses did not object to the City’s withholding of records under the attorney-client privilege. This office has reviewed the docket of the trial court and confirmed that the requested records are the subject of active and ongoing litigation in Essex County Superior Court. See City of Beverly v. 623 Landfill, Inc. (Docket No. 2577CV00758).

Suzanne P. Egan, Esq. SPR25/2420 Page 4 August 29, 2025 Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Evan Moses Grace E. Poirier