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

1. 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

2. Mr. Jason D. Grossfield, Esq.
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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

3. Mr. Jason D. Grossfield, Esq.
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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)

4. Mr. Jason D. Grossfield, Esq.
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Febmary 11, 2014
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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).

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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