MA Public Records Decision- Somerville City Officials 2012 emails

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Information about MA Public Records Decision- Somerville City Officials 2012 emails
News & Politics

Published on February 15, 2014

Author: eilily

Source: slideshare.net

Description

In a 5-page decision, the Massachusetts Public Records Division agrees with disability rights leader Eileen Feldman that the City of Somerville has failed to meet its burden in explaining why a majority of the 50 email records provided in response to a Public records request were near-fully redacted.

The State orders the City of Somerville to provide copies of the applicable records within 10 (calendar) days, or provide the public records division with a more detailed explanation of the exemption and privilege claims.

Public Records Request, City's 9/11/13 response "ARCHIVE", and City Solicitor's "Privilege-Exemptions log, is found, along with other related communications, at: https://www.muckrock.com/foi/somerville-8/somerville-city-hall-emails-mar-june-2012-pir-72313-6344/

Feldman's timely Appeal can be viewed here: https://www.muckrock.com/foi/somerville-8/somerville-city-hall-emails-mar-june-2012-pir-72313-6344/#808965-prl-appeal-feldman-10_21_13-emailfinal-pdf

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofRecords February 11, 2014 SPR13/210 Mr. Jason D. Grossfield, Esq. City of Somerville Office of the City Solicitor 93 Highland Avenue Somerville, MA 02143 Dear Attorney Grossfield: This office has received the petition of Eileen Feldman appealing the response of the City of Somerville (City) to her July 23, 2013 request for public records. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(6). Specifically, Ms. Feldman requested copies of fifty (50) specifically identified email communications. City's Initial Response and Fee Estimate In an August 6, 2013 email to Ms. Feldman, you provided an estimate for the cost to be incurred in complying with this request. In her petition to this office, Ms. Feldman cited the City's failure to comply with the timeliness requirement of the Public Records Law. See G. L. c. 66, § lO(b); 950 C.M.R. 32.05 (all requests for public records must be met with a written response within ten (1 0) calendar days of the request). The City is reminded of its burden to respond to a records request in a timely manner. Ms. Feldman also contested the City's fee estimate calculation for the cost to provide copies of records responsive to her request. The City's estimate included the cost for a compact disc on which to provide electronic copies of the responsive records, and 1.4 hours of search and review time at your hourly rate. It is my finding that the City's fee estimate calculation is reasonable given the number and type of records requested. The City is pem1itted to issue a detailed fee estimate for the cost to be incurred in providing records responsive to a public records request. See 950 C.M.R. 32.06(2). OneAshburton Place, Room 1719, Boston, Massachusetts 02108. (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jason D. Grossfield, Esq. Page Two February 11, 2014 SPR13/210 City's Production of Responsive Records Included with your September 10, 2013 letter to Ms. Feldman, the City provided copies of the fifty (50) records responsive to her request. While the City did not withhold any responsive records, the City redacted information pursuant to the common law attorneyclient privilege; and Exemptions (b), (c), (d), (e) and (o) ofthe Public Records Law. In her petition to this office, Ms. Feldman cited the City's failure to release nonexempt portions of the responsive records. In providing these records to Ms. Feldman in redacted form, the information that the City did not redact in fact constitutes the non-exempt portions of the records she has requested. I decline to accept Ms. Feldman's premise that the City redacted inforn1ation beyond what it determined as exempt from disclosure. Ms. Feldman has also challenged the City's assertion that multiple exemptions may be applicable to the same responsive record. While the City is not restricted from citing one or more exemptions with respect to the same record, it continues to hold the burden of proving with specificity the applicability of each exemption that is cited. See G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Ms. Feldman also contested the fact that records provided to her in response to her request were copies of records previously provided by the City in response to a prior records request from a different requester. Ms. Feldman is advised that the City is not prohibited from providing the same record in response to separate public records requests if it is the City's determination that the record is responsive to both requests. This office fails to understand Ms. Feldman's concern that she was granted "less access" when she was provided the exact same record, even in redacted form, as that provided to another requester. Exemptions (b), (c), (d) In its September 1oth response, the City cited the applicability of Exemptions (b), (c), and (d) to certain responsive records. In a September 24, 2013 email to Ms. Feldman, the City also provided a Privilege/Exemption Log that identified the specific exemptions and/or privilege relied upon by the City in withholding responsive information from the records that were provided to her. This office recognizes the City's effort to provide additional information regarding its exemption claims. However, with respect to Exemptions (b), (c), and (d), the City failed to identify the applicability of these exemptions, with specificity, to the responsive records. The Public Records Law states that "the burden shall be upon the custodian to prove with

Mr. Jason D. Grossfield, Esq. Page Three February 11, 2014 SPR13/210 specificity the exemption which applies." G. L. c. 66, § lO(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). While the City did identify the specific records for which these exemptions were cited, it failed to provide a detailed explanation as to how the exemptions apply to those specific records. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e) In its Privilege/Exemption Log, the City cited the applicability of this exemption to a May 31, 2012 email that was sent by a City employee to other City employees. This exemption is applicable to records that are personal to a particular employee and are not shared with other individuals or maintained as part of governmental files. Whereas the responsive email was shared among City employees, the City may not permissibly withhold the responsive record pursuant to Exemption (e). Exemption (o) Exemption ( o) applies to: the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)( o)

Mr. Jason D. Grossfield, Esq. Page Four Febmary 11, 2014 SPR13/210 In its Privilege/Exemption Log, the City cited the applicability of this exemption to a May 3, 2012 email. In the log, the City stated that the home address of a City employee was redacted pursuant to this exemption. It is my finding that the City may permissibly withhold employee addresses from this record pursuant to Exemption (o). In reviewing a redacted copy of the responsive record provided to this office by Ms. Feldman, it appears that the City has redacted the home addresses for two Commissioners of the City's Human Rights Commission. The redacted information is of the type that this exemption is designed to protect and may be permissibly withheld. Common Law Attorney-Client Privilege The Supreme Judicial Court (SJC) has held that confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal mles of the attorneyclient privilege. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). In order for the claim of attorney-client privilege to be valid, the records custodian has the burden of not only proving the existence of an attorney-client relationship, but also establishing: (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., 449 Mass. fn 9; Colonial Gas Co. v. Aetna Cas. & Sur. Co., 144 F.R.D. 600, 604 (D. Mass. 1992). I have reviewed redacted copies of the responsive records where the City has cited the applicability of the attorney-client privilege. It is my finding that the City may withhold certain responsive information pursuant to the privilege, but has failed to satisfy its burden in showing that other responsive information meets the aforementioned criteria. The bulk of responsive records provided by the City consist of email threads that, in general, contain multiple communications within the same email thread. With respect to those responsive records that include a communication to and/or from a City attorney, where that City attorney has provided some type of communication or dialogue, it is my finding that those records may be redacted pursuant to the attorney-client privilege. I will rely on the City's assertion that those records involve the obtaining or providing oflegal advice or assistance. See Konover Mgt.Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (the strong presumption that a public official will perform honestly and impartially and will properly discharge the duties ofhis office in the public interest).

Mr. Jason D. Grossfield, Esq. Page Five February 11, 2014 SPR13/210 The City has redacted other responsive records pursuant to this privilege where a City attorney was strictly the recipient of an email, or in some instances, was only copied on the email. In those records, there is no indication to suggest that legal advice or assistance was solicited from, or provided by, a City Attorney. The City may not withhold responsive information pursuant to the attorney-client privilege for records that a City attorney may have simply viewed or received. In the event that the City believes that some or all of these records may contain privileged information, the City has failed to satisfy its burden in doing so. See Globe Newspaper Co. v. Police Comm'r, 419 Mass. at 857. It is my finding that the City has failed to satisfy its burden in withholding responsive information pursuant to Exemptions (b), (c), (d), (e), and the attorney-client privilege. The City is hereby ordered to provide Ms. Feldman with copies of the applicable records within ten (1 0) calendar days, or provide this office with a more detailed explanation of its exemption and privilege claims. This administrative appeal is closed. Shawn A. Williams Supervisor of Records cc: Ms. Eileen Feldman

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