John Hawkinson v. Cambridge, City of - Office of the City Solicitor (SPR 20253177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2025 SPR25/3177 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.” I understand the City assigned reference number P251862-090325 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/2750 Determination of the Supervisor of Records (September 30, 2025). In my September 30th determination, I ordered the City to clarify its claims for withholding responsive records pursuant to the attorney-client privilege. Subsequently, the City responded on October 28, 2025. Unsatisfied with the City’s response, Mr. Hawkinson petitioned this office, and this appeal, SPR25/3177, 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). 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 SPR25/3177 Page 2 November 13, 2025 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. Current Appeal In his appeal petition, Mr. Hawkinson argues the following: I don’t know what is required for a privilege claim, but that seems like an extremely weak claim as well as one that could easily have been made by the Oct. 15 deadline (or well before it!), which suggests something else is going on here. I do not know what. To reiterate, from reporting, I understand that the email in question solicited feedback from City Council members individually, articulated work the Cambridge Election Commission would have to do in the event that the Home Rule petition was made law, and solicited interest in drafting pro and con arguments in favor of a ballot question. I do not understand any of that to be privileged, nor is there any explanation offered as to why the material is privileged or how privilege should apply. It is hard to fathom. The City’s Responses In its September 17, 2025 response, the City indicated it was withholding one responsive record pursuant to the attorney-client privilege. In its September 24, 2025 response, the City provided a redacted copy of the responsive email, and in its October 28, 2025 response, further elaborated on its claim under the attorney-client privilege. 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

Seah Levy SPR25/3177 Page 3 November 13, 2025 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 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. In its October 28, 2025 response, the City further stated that “the City affirms that the redacted email was made in confidence, at that the privileged has not been waived.” Where the City has provided a detailed description of the record redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communication was made in confidence and that the privilege has not been waived, I find the City has met its burden to redact the responsive record pursuant to the attorney-client privilege.

Seah Levy SPR25/3177 Page 4 November 13, 2025 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Hawkinson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson