David Chritson v. Somerville Housing Authority (SPR 20253358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2025 SPR25/3358 Emily Eschmann Records Access Officer Somerville Housing Authority 30 Memorial Road Somerville, MA 02145 Dear Ms. Eschmann: I have received the petition of David Chritson appealing the response of the Somerville Housing Authority (Authority/SHA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2025, Mr. Chritson requested the following: Please identify and release to me in electronic format, all existing records associated with [a named individual]—including records in physical, electronic, or any other format—from January 1, 2024 to October 31, 2025, that are in the possession, custody, or control of the Somerville Housing Authority (“SHA”); including all communications and records that involve [the individual] or are associated with [the individual], that were made or received by the following [list of seven identified] SHA personnel[.] The Authority responded on November 10, 2025. Unsatisfied with the Authority’s response, Mr. Chritson petitioned this office, and this appeal, SPR25/3358, 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

Emily Eschmann SPR25/3358 Page 2 December 1, 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. The Authority’s November 10th Response In its November 10, 2025 response, the Authority provides numerous responsive records and states “that any emails involving SHA’s attorney . . . are privileged and confidential.” In his appeal petition, Mr. Chritson contends that “SHA withheld additional responsive records under unsubstantiated claims of 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 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). Based on the Authority’s November 10th response, it is unclear which specific records have been withheld pursuant to the attorney-client privilege. Specifically, the Authority must provide an index comprised of a detailed description of each record withheld or redacted 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). Further, the Authority must clarify whether the communications were

Emily Eschmann SPR25/3358 Page 3 December 1, 2025 made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Records in Existence; Possession, Custody, or Control Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In his appeal petition, Mr. Chritson also contends that “SHA provided a response . . . withholding approximately ninety five percent (95%) of the responsive records without providing any verifiable lawful basis. SHA also withheld the entirety of [the responsive] tenant file(s) and other additional responsive records, including records made or received by the [list of specified] SHA personnel.” Based on the Authority’s response, and the information provided in Mr. Chritson’s appeal petition, it is unclear whether the Authority possesses additional records responsive to Mr. Chritson’s request. If the Authority does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”). Conclusion Accordingly, the Authority is ordered to provide Mr. Chritson 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. Chritson may further appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Emily Eschmann SPR25/3358 Page 4 December 1, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Chritson