John Hawkinson v. Cambridge, City of - Office of the City Solicitor (SPR 20252750)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2025 SPR25/2750 Seah Levy Public Records Access Officer Law Department City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 3, 2025, Mr. Hawkinson requested “… updates to the City Council … [from the City Solicitor’s Office] regarding the status of the Home Rule Petition to change the Cambridge City Charter (H.4156) … from 5/27/2025 (when the bill was referred to Committee) to present.” The City responded on September 17, 2025. Unsatisfied with the City’s response, Mr. Hawkinson petitioned this office and this appeal, SPR25/2750, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on September 24, 2025. In a September 24, 2025 email communication to this office, Mr. Hawkinson objected to the City’s supplemental response. 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

Seah Levy SPR25/2750 Page 2 September 30, 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 17th Response In its September 17, 2025 response, the City provided Mr. Hawkinson with a responsive email communication. The City informed Mr. Hawkinson that it was withholding an additional email communication pursuant to the attorney-client privilege. Current Appeal In his September 17, 2025 petition to this office, Mr. Hawkinson objected to the withholding of the responsive record. Specifically, Mr. Hawkinson sought the disclosure of any segregable, non-exempt portion of the responsive record. 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 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 September 17th response, the City stated: The City is withholding one email responsive to your request as this information is exempt from disclosure under the attorney-client privilege, because it relates to privileged and confidential attorney-client communications made for the purpose

Seah Levy SPR25/2750 Page 3 September 30, 2025 of facilitating the rendition of legal advice between law Department attorneys and staff, and City of Cambridge staff as their clients. Pursuant to 950 CMR § 32.06(3)(d), below is a description of the responsive records which are being withheld pursuant to the attorney-client privilege: 1. September 1, 2025, Email Correspondence from [an identified individual] to [15 identified individuals] Re: Charter Home Rule Petition Update. In its September 24th response, the City produced a redacted version of the responsive email communication. In support of this redaction, the City stated: Attached please find a copy of the withheld email. Those portions of the email which are exempt pursuant to the attorney-client privileged have been redacted. This section of the email contains communications made for the purpose of facilitating the rendition of legal advice between Law Department attorneys and staff, and City of Cambridge staff as their clients. Based on the City’s September 17th and September 24th responses, I find that the City has not satisfied the requirements articulated in Suffolk. Specifically, the City must clarify whether the redacted email communication was made in confidence, and whether the privilege has been waived with respect to that communication. Conclusion Accordingly, the City is ordered to provide Mr. Hawkinson 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. Hawkinson may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson