Request #2018-0051 (Everett, MA - Solicitor)

Request for public records made to City of Everett by Steven Fitzgerald.

Agency

City of Everett

Summary

City of Everett Massachusetts Mayor Carlo DeMaria 484 Broadway Everett Ma. 02149 April 19, 2018 Mayor Carlo DeMaria, This letter is a request of Professional Courtesy for the City of Everett to provide me with any papers and documents pertaining to the Lawsuit that the City has regarding any litigation in the National Opioid Crisis you spoke about in your State of The City address this past January. Please forward to the Email address below. Steven Fitzgerald StevenFitzgerald13@gmail.com This Letter was forwarded by email to: colleen.mejia@ci.everett.ma.us                                                                             kevin.odonnell@ci.everett.ma.us May 1, 2018 BY ELECTRONIC MAIL (StevenFitzgerald13@gmail.com) Mr. Steven Fitzgerald StevenFitzgerald13@gmail.com Re:       Public Records Request - City of Everett Dear Mr. Fitzgerald:             The City of Everett (“City”) is in receipt of your public records request dated April 19, 2018 seeking certain City records, which the City received on April 19, 2018.  Please accept this correspondence as the City’s response to your request. Summary of Request In your request, you seek the following records: Any papers and documents pertaining to the lawsuit that the City has regarding any litigation in the National Opioid Crisis Mayor DeMaria spoke about in his State of the City Address in January, 2018. Response to Request The City has carefully reviewed your request and determined that it has documents responsive to your request.  Enclosed please find the Complaint filed in U.S. District Court on behalf of the City as well as the Retention Agreement, which is responsive to your request.  On this occasion only, the City is providing this records at no charge.  Please be advised that the City does not have any further non-privileged documents responsive to your request.  Where permitted by law, records or material contained therein may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege.  See, e.g., G.L. c. 4, §7(26); Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); 950 CMR 32.06(3).  Although reference is made below to the application of the attorney-client privilege, work product doctrine, and Exemption (d) of the Public Records Law, the City reserves the right to identify and assert any other applicable exemptions.  In accordance with G.L. c. 66, §10(b)(iv), nothing herein shall limit the City’s ability to redact or withhold information in accordance with state or federal law. Based upon its review, absent the records provided herein, the City anticipates that additional records responsive to your request constitute confidential communications between City officials, the City Solicitor, and outside counsel involved such litigation, for the purpose of obtaining legal advice relative to such litigation, for which the attorney-client privilege has not been waived, and therefore, that such records may be withheld pursuant to the attorney-client privilege. Additionally, the City will withhold privileged documents relative to the opioid litigation at this time pursuant to Exemption (d) of the Public Records Law.  Exemption (d) provides a limited executive privilege for policy development with an ongoing deliberative process. See G.L. c. 4 §7(26)(d).  This exemption is intended to limit release of materials related to recommendations on legal and policy matters that could taint or impair the deliberative process if prematurely disclosed.  See Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988); see also “A Guide to the Massachusetts Public Records Law”, p. 18.  The courts and the Supervisor of Records have construed Exemption (d) as applying to records concerning ongoing litigation involving a public body.  See Lafferty v. Martha’s Vineyard Commission, Superior Court, 2004 Mass.Super.LEXIS 107 (2004). “The preparation of and involvement in litigation by [a public body] inherently entails the development of ‘policy positions’ by that [public body].…  Further, the [public body] prosecutes a strategy for the litigation, and its ‘policy positions’ are frequently subject to change and refinement throughout the litigation.”  Id.  At this time, the litigation documents are protected by the deliberative process privilege since the City’s involvement in the above-referenced opioid litigation is ongoing at this time.   Moreover, the Supreme Judicial Court in DaRosa v. City of New Bedford,  471 Mass. 446 (2015), concluded that opinion work product prepared in anticipation of litigation “falls within the scope of Exemption (d) and therefore falls outside the definition of “public records.”  Further, fact work product also falls within the scope of Exemption (d) “where it is interwoven with opinions or analysis leading to opinions.”  DaRosa, 471 Mass. at 448.  The City maintains that additional responsive records contain litigation related work product used to develop the City’s ongoing legal and policy positions relative to the opioid crisis and pending litigation.  Therefore, because the responsive records relate to development or recommendations on legal and policy matters with ongoing litigation in consultation with the City Solicitor’s Office, such records will be withheld at this time.   Statement of Appeal Rights You may appeal this response to the Supervisor of Public Records pursuant to 950 CMR 32.08(1)(d).  By law, the Supervisor is required to respond within 10 business days of receipt of your appeal.  You may also seek judicial review of an unfavorable response by commencing a civil action in the superior court, under G.L. c. 66, §10A(c).

Request Date

2018-05-01

Agency Tracking

2018-0051

Acquisition Notes

This record was automatically imported from https://www.townforms.com/FOIADirect-EverettMACitizens/

Status

Fulfilled

Requester

Steven Fitzgerald

This record is part of the StateReference Public Records Requests collection. This is a public records request to a state agency or municipality.

This record was originally posted at https://www.townforms.com/FOIADirect-EverettMACitizens/.