Fortes, Jake v. Lowell, City of - Law Department (SPR 20260784)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2026 SPR26/0784 Olivia Hart-Paulson Second Assistant City Solicitor City of Lowell 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Ms. Hart-Paulson: I have received the petition of Jake Fortes appealing the response of the City of Lowell (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 25, 2025, Mr. Fortes requested: [A]ll communications with the Markley Group, its employees and associated entities including but not limited to [four identified individuals], MeadowBolt LLC or any mention of the Markley Group and its related entities with the City of Lowell. … Publicly available agendas, minutes and plans are not included in this request. It is specifically communications between those entities and the city of Lowell be it in the form of email, mail or reports. This is not limited to just known entities but any communications containing Markley, 2 Prince Ave or other related entities as well between City of Lowell staff. The time span of this request is the last 5 years except where the municipal retention record dictates a shorter time period. Previous Appeal The requested records were the subject of a previous appeal. See SPR26/0440 Determination of the Supervisor of Records (February 11, 2026). In my February 11th determination, I learned that the City provided Mr. Fortes with a supplemental response. The City responded on February 10, 2026. Unsatisfied with the City’s response, Mr. Fortes petitioned this office and this appeal, SPR26/0784, was opened as a result. 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

Olivia Hart-Paulson SPR26/0784 Page 2 March 19, 2026 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. 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. Fortes contends: On February 9, 2026, after the deadline the City responded with responsive records from some of the departments with the requested departments. However, in the body of the email which the Secretary of the Commonwealth’s (SOC) office was copied on the City indicated there were 12 items there were deemed exempt under different sections of the public records law. I kindly asked for a privilege law under MGL chapter 66, section 10(b)(iv) and the SOC was copied on February 11, 2026 and her reply indicating that she would be happy to provide the log on February 12, 2026 and I confirmed I wanted a copy of the log later that same day with the SOC office copied. On Wednesday, February 25, 2026, I emailed the City again requesting the privilege log by close of business on February 26, 2026. She has failed to respond. … The City’s February 10th Response On February 10, 2026, the City stated that it withheld certain records pursuant to the attorney-client privilege and Exemptions (d) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(d); G. L. c. 4, § 7(26)(f).

Olivia Hart-Paulson SPR26/0784 Page 3 March 19, 2026 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Olivia Hart-Paulson SPR26/0784 Page 4 March 19, 2026 The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City did not meet its burden of demonstrating how the withheld information is exempt from disclosure under the Public Records Law. The City’s responses did not contain the specificity required in a denial of access to public records. The City merely cites Exemptions (d) and (f) without an explanation of the applicability of the exemptions to the responsive records. The City must provide additional information regarding how the records may be withheld under the Public Records Law.

Olivia Hart-Paulson SPR26/0784 Page 5 March 19, 2026 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). In this case, the City’s response did not contain the specificity required to withhold records pursuant to the attorney-client privilege. Based on the City’s February 10th response, it is unclear which specific records have been withheld pursuant to the privilege. Specifically, the City 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 City must clarify whether the communications were 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. Conclusion Accordingly, the City is ordered to provide Mr. Fortes 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. Fortes may further appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Olivia Hart-Paulson SPR26/0784 Page 6 March 19, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Jake Fortes