Transparency, Commonwealth v. Malden, City of (SPR 20261212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 15, 2026 SPR26/1212 Joanne Perperian Records Access Officer City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Perperian: I have received the petition of Commonwealth Transparency (requestor) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2026, the requestor sought the following: [1] [A]ny documents/records in the possession or under the control of your town/city/municipality which contain the following data: - All dollars expended by the City of Malden on the following specific court cases: - § 2181CV01248 in the Middlesex Superior Court - § 22 MISC 0076 in the Massachusetts Land Court - § 24 MISC 0281 in the Massachusetts Land Court This request seeks any expenses incurred in the above listed specific court cases, any billing statements received from any lawyer and/or any law firm, and any payments made to lawyer and/or any law firm for the specific court cases listed above. [2] All hours expended by the City of Malden Solicitors office on the following specific court cases: - § 2181CV01248 in the Middlesex Superior Court - § 22 MISC 0076 in the Massachusetts Land Court - § 24 MISC 0281 in the Massachusetts Land Court This request seeks any time incurred in the above listed specific court cases, tracked by any member/employee of the City Solicitors Office, past or present. 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

Joanne Perperian SPR26/1212 Page 2 April 15, 2026 Previous Appeal This request was the subject of a previous appeal. See SPR26/0965 Determination of the Supervisor of Records (April 1, 2026). In my April 1st determination, I closed SPR26/0965 in light of the City providing a supplemental response to the requestor on April 1, 2026. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR26/1212, 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. 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 the appeal petition, the requestor argues the following: [The City] states that “Redactions were applied to the requested documents to remove all attorney-client privileged information as allowed in M.G.L. c. 4, § 7(26)(d) and to provide the relevant requested documents to the Requestor.” G.L. c. 4, § 7(26)(d) is NOT attorney-client privilege, rather it is an exemption for 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; Attorney-Client privilege is a completely different statute, exemption, and process, which includes her responsibility to provide a privilege log, which has not been done.

Joanne Perperian SPR26/1212 Page 3 April 15, 2026 The City’s March 17th and April 1st Responses In its March 17, 2026 response, the City provided numerous records in redacted form responsive to Item 1 of the request, and cited Exemption (d) of the Public Records Law for redacting the records, and stated that “some documents have been redacted due to attorney work product in accordance with Exemption (d).” See G. L. c. 4, § 7(26)(d). Additionally, the City explains that it does not possess records responsive to Item 2 of the request. In its April 1, 2026 response, the City states the following: The documents were not overly nor improperly redacted. Redactions were applied to the requested documents to remove all attorney-client privileged information as allowed in M.G.L. c. 4, § 7(26)(d) and to provide the relevant requested documents to the Requestor. All dates, hours expended, and total costs applicable to the requested documents remained unredacted. Regarding Dockets 24MISC000281 and 24MISC00076, both court cases are currently open. Attached you will find docket entries for both cases that include next court dates for hearings to be held. In an email to the requestor and this office on April 1, 2026, the City clarified that “citing that statute was a drafting error that should have been removed prior to being sent out.” Consequently, I understand the City does not claim Exemption (d) of the Public Records Law for redacting the responsive records. 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).

Joanne Perperian SPR26/1212 Page 4 April 15, 2026 In this case, although portions of the invoices were redacted, the City has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the authors and recipients, and information regarding the subject of each entry. However, based on the City’s responses, the City has not met its burden to redact the responsive records pursuant to the attorney-client privilege. In particular, 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 the City must clarify 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 the requestor 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. The requestor may further 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: Commonwealth Transparency