DeMeo, Paul v. Gardner, City of (SPR 20260025)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 20, 2026 SPR26/0025 Titi Siriphan City Clerk City of Gardner 95 Pleasant Street Gardner, MA 01440 Dear Ms. Siriphan: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 18, 2025, Mr. DeMeo requested “the Executive Session minutes of the Gardner City Council for the years 2023, 2024, and 2025. The City responded on January 5, 2026. Unsatisfied with the City’s response, Mr. DeMeo petitioned this office and this appeal, SPR26/0025, 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. See G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a 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

Titi Siriphan SPR26/0025 Page 2 January 20, 2026 records custodian must provide the responsive records. The City’s January 5th Response In its January 5, 2026 response, the City provided a copy of executive session minutes responsive to April 3, 2023. The City additionally provided redacted copies of executive session minutes responsive to August 7, 2023 and September 18, 2023, and cited the attorney-client privilege in support of its position. The City further advised that it did not possess records responsive to 2024 and 2025 where, “[t]here were no executive session meetings held in 2024 or 2025.” Current Appeal In his January 5, 2026 appeal, Mr. DeMeo states, “the City . . . failed to provide ALL Public records to include redacted portions of the Executive Minutes.” He argues, “[w]hereas the issues involved for the Executive Session to which I believe have been resolved, there should be no redaction in the minutes. . . .” Additionally, in his appeal petition, Mr. DeMeo states that the City’s January 5th response, “did not include the draft agreement as handed out to the Gardner City Council in the Executive Sessions[.]” Where the December 18th request sought only executive session minutes, I decline to opine on this matter. If Mr. DeMeo made a separate request for records responsive to “the draft agreement as handed out to the Gardner City Council in the Executive Sessions” and is unsatisfied with the response, he may file an appeal with this office within 90 days. Mr. DeMeo further contends in his appeal that the City, “also failed to provide . . . the April 3, 2023 City Council Executive Minutes.” Upon review of the case file, it is my understanding that the City provided a copy of the April 3, 2023 executive session minutes in its January 5th response, as noted above. Accordingly, I find that the portion of Mr. DeMeo’s appeal regarding the City’s failure to provide “the April 3, 2023 City Council Executive Minutes” is resolved. 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.

Titi Siriphan SPR26/0025 Page 3 January 20, 2026 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 January 5, 2026 response, the City provided a privilege log identifying two records of executive session minutes that were redacted under the attorney-client privilege, and included the dates and the basis on which the privilege is being claimed. However, upon review of the City’s privilege log, in conjunction with the redacted executive session minutes provided by the City, I find that the author(s) and recipients, as well as the substance of the withheld portions of the records is unclear. Further, the City did not clarify whether the redacted information concerns communications 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. Therefore, I find that the City has not met its burden to redact the responsive executive session minutes under the attorney-client privilege and must provide a privilege log which includes the records’ author(s) and recipients, as well as the substance of the redacted portions of the records, as required by G. L. c. 66, § 10A(a). Additionally, the City must clarify if the information withheld from the records provided in its January 5th response satisfies the requirements articulated in Suffolk. Conclusion Accordingly, the City is ordered to provide Mr. DeMeo with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. DeMeo 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: Paul DeMeo