Jacquelyn Wehtje v. Fitchburg, City of (SPR 20252740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2025 SPR25/2740 Joanna Bilotta-Simeone City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta-Simeone: I have received the petition of Jacquelyn Wehtje appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2025, Ms. Wehtje requested “…a copy of the city’s ‘social equity policy’ referenced in the Mead, Talerman, Costa invoice for the period ended 3/15/25.” Previous Appeal This request was the subject of a previous appeal. See SPR25/2637 Determination of the Supervisor of Records (September 17, 2025). In my September 17th determination, I ordered the City to provide Ms. Wehtje with a response to her request. Subsequently, I learned that the City responded on September 9, 2025. Unsatisfied with the City’s response, Ms. Wehtje petitioned this office and this appeal, SPR25/2740, 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 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

Joanna Bilotta-Simeone SPR25/2740 Page 2 September 26, 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 September 9th Response In its September 9, 2025 response, the City cited the attorney-client privilege to withhold the responsive document. Current Appeal In her appeal petition, Ms. Wehtje stated: Just as minutes are to be provided to the public even if only available in draft form, I believe this policy should be provided to the public even if only available in draft form. 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, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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 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). Under the attorney-client privilege, the City stated: The requested document has been withheld as confidential communications between legal counsel and a client (i.e., the City) undertaken for the purpose of obtaining legal advice or assistance on matters of law… No social equity policy

Joanna Bilotta-Simeone SPR25/2740 Page 3 September 26, 2025 has been adopted by the City at this time. If the City adopts a social equity policy, that policy will be posted on the City’s website and available for inspection. In this case, the City failed to 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 in accordance with G. L. c. 66, § 10A(a). Although the City states that the responsive record reflects confidential communications between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such, the City must also provide further information regarding whether the communications were made in confidence and demonstrate that the privilege as to these communications has not been waived. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Ms. Wehtje with a response to her 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. Ms. Wehtje may 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: Jacquelyn Wehtje