Caroline E. Smith v. Lynn, City of - Office of the City Solicitor (SPR 20252646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2025 SPR25/2646 James P. Lamanna, Esq. Assistant City Solicitor City of Lynn 3 City Hall Square, Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Attorney Caroline Smith Quijada, of McGregor, Legere & Stevens, Attorneys at Law, P.C., appealing the response of the City of Lynn (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 5, 2025, Attorney Gregor I. McGregor, also of McGregor, Legere & Stevens, Attorneys at Law, P.C., requested the following: [P]ublic records related to any and all digital or hard copy documents of the City of Lynn on the subject of noise regarding the Lynn/Swampscott UV Pilot Program. This includes but is not limited to communications by, to, from or between Dandreo Brothers General Contractor and Masonry and any of its subcontractors; State Senator Brendan Crighton; State Representative Jennifer Armini; Massachusetts Department of Environmental Protection (MassDEP); boards, departments, divisions, sections, officials, employees, or offices of the City of Lynn itself; or any consultant(s) retained or utilized by the City of Lynn. . . . The documents requested above include but are not limited to: 1. Any and all reports, e-mail messages, letters, correspondence, and other communications between and among the City of Lynn officers and officials, supporting staff, the City Manager, City Solicitor, or other city employees or board or commission members by, to, from or between the parties listed above on the subject of noise. 2. Any noise assessments, analyses, opinions, measurements, printouts, screen shots, or results in any form and any deployment of noise measuring devices handheld or fixed on directly or indirectly by or for the City of Lynn, including 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

James P. Lamanna, Esq. SPR25/2646 Page 2 September 18, 2025 all testing data collected from April 1, 2025 to date. The City responded on August 27, 2025. Unsatisfied with the City’s response, Attorney Quijada petitioned this office, and this appeal, SPR25/2646, 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. The City’s August 27th Response In its August 27, 2025 response, the City cites Exemption (d) of the Public Records Law and the attorney-client privilege for withholding responsive records. See G. L. c. 4, § 7(26)(d). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably

James P. Lamanna, Esq. SPR25/2646 Page 3 September 18, 2025 complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its August 27th response, under Exemption (d), the City argues the following: Here, King’s Beach on the Lynn/Swampscott line has been historically plagued with high bacteria counts that results in the closure of the beach to swimmers during the summer months. Lynn and Swampscott have long searched for solutions to address the bacteria levels and possible remedial efforts to reduce or eliminate the bacteria counts. To this end, in 2024 the local elected state delegation appropriated $2,256.019.56 to the City of Lynn and the Town of Swampscott to review possible remedial actions that could be undertaken to reduce or eliminate the bacterial levels at King's Beach. The City of Lynn and the Town of Swampscott have hired outside consultants to recommend such possible remedial solutions. No permanent policy has been adopted by the municipalities at the present time. In 2025, per the recommendation of outside consultants, the City of Lynn and the Town of Swampscott commissioned a trial use of an ultra violet machine designed to kill bacteria present at King’s Beach. The City of Lynn and the Town of Swampscott continue to review data to monitor the effectiveness of the UV machine and whether this equipment along with other remedial measure could substantially reduce the number of days during the summer months that King’s Beach is closed due to unsafe levels of bacteria. The trial period has come to a close and no final formal policy has been adopted at the present time. Much of the data you have requested serve as the underpinnings of what all parties hope to be a permanent policy to address the unsafe bacteria levels at King’s Beach. It may very well be that the UV machine is deemed to not be the best and most cost-effective means to reduce the bacterial levels and that other remedial methods will be explored. Until such time as a formal policy is developed, the material you have requested are protected from disclosure by Exemption (d). It also must be noted that on July 24, 2025 [Attorney McGregor’s] law firm forwarded a Massachusetts General Laws Chapter 258 Presentment Letter to the City of Lynn and the Town of Swampscott under the Massachusetts Torts Claims

James P. Lamanna, Esq. SPR25/2646 Page 4 September 18, 2025 Act. Pursuant to State law, both municipalities have six (6) months to investigate the claims contained in the Presentment Letter. [Attorney McGregor’s] threat of a lawsuit on behalf of neighbors directly effects the policy currently being developed to address the bacteria levels that Lynn and Swampscott hope to adopt in the near turn. The threat of future litigation could influence the City and Town’s ultimate policy that becomes adopted. Therefore, much of the documentation that [Attorney McGregor] requested involve correspondence between legal counsel of the City of Lynn and City officials and outside consultants who would testify at a future trial. After an individualized review of the requested documents, the records requested are directly related to possible future litigation matters involving the City of Lynn as well as policies being developed by the City of Lynn and the Town of Swampscott regarding public safety concerns at King’s Beach, and, as such, they fall within the purview of exemption (d). Based on the information provided in the City’s response, although the City has explained that the deliberative process remains ongoing and incomplete, I find that the City has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). The City must clarify this. Additionally, it is unclear how the responsive records, in their entirety, constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the City has not demonstrated that the responsive records are not factual in nature, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. The City must clarify these matters. Any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, it is unclear from the City’s response which specific records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold under Exemption (d). 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”).

James P. Lamanna, Esq. SPR25/2646 Page 5 September 18, 2025 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 August 27th response, the City argues the following under the attorney-client privilege: The remaining responsive records are subject to the attorney-client privilege in light of the threatened litigation involving the municipalities and many defendants, including Attorney Voris' clients. See Presentment Letter; Exhibit A. The “attorney client privilege shields from the view of third parties all confidential communications between a client and its attorney unde1taken for the purpose of obtaining legal advice.” Suffolk Construction Co. v. Div. of Capital Asset Management, 449 Mass. 444, 448 (2007). Where the City of Lynn has not waived the attorney-client privilege with respect to such records, they will not be released. Confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are also protected under the normal rules of the attorney-client privilege and are not subject to disclosure under the public records law. Work product, including legal strategies, opinions, and related deliberations, are also not subject to disclosure. See DaRosa v. City of New Bedford, 471 Mass. 446, 465 (2015). Records within [Attorney McGregor’s] requests that reflect such privileged work product with the City’s attorneys are also exempt from disclosure. Here, where the request seeks decision-making communications between the City of Lynn and its attorneys as regarding threatened future litigation and/or what policy should be adopted to address public safety concerns at King’s Beach, responsive records necessarily reflect that the municipal officials sought or received confidential legal advice from their attorneys in the attorneys’ capacity

James P. Lamanna, Esq. SPR25/2646 Page 6 September 18, 2025 as such, which requests were made in confidence, and, further, that the privilege has not been waived by disclosure to some third party. As such, responsive records are protected from disclosure pursuant to the attorney-client privilege. Based on its August 27th response, although the City has confirmed that the withheld records were received from a client during the course of the client’s search for legal advice, and has confirmed that the communications were made in confidence, and that the privilege as to these communications has not been waived, I find it is unclear which specific records the City intends to withhold pursuant to the attorney-client privilege. 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 Attorney Quijada 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. Attorney Quijada may further appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Caroline Smith Quijada, Esq.