Taylor, Seth v. Chatham, Town of (SPR 20140202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April10, 2014 SPR14/202 Ms. Jill R. Goldsmith, Town Manager Town of Chatham 549 Main Street Chatham, MA 02633 Dear Ms. Goldsmith: This office has received the petition of Seth Taylor appealing your response for the Town of Chatham (Town) to his request for public records. See G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(6). Specifically, Mr. Taylor requested various records relating to employee policies, the Police Chief, and the Town Harbormaster. In a February 20, 2014letter responding to this request, the Town included a fee estimate for the cost to provide certain responsive records, and stated that other responsive records were being withheld pursuant to the common law attorney-client privilege, and Exemptions (a), (c), (e), (f) and (o) ofthe Public Records Law. In correspondence with this office, Mr. Taylor stated that his request to the Town was made in a January 8, 2014letter. The Town's February 20th letter stated that it was being provided in response to Mr. Taylor's February 6, 2014 request for records. I am uncertain as to the exact date this request was made, but in either instance, the Town failed to comply with the timeliness requirement of the Public Records Law. The Town is reminded that under the Public Records Law and the Access Regulations (Regulations), all requests for public records must be met with a written response within ten (1 0) calendar days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Town also failed to satisfy its burden with respect to the substance of its response to Mr. Taylor's records request. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jill R. Goldsmith, Town Manager SPR14/202 Page Two April10, 2014 (1995). Furthermore, a records custodian seeking to withhold records pursuant to the attorney-client privilege holds 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). The Town has provided no specificity with respect to the applicability of the attorney client privilege or any of the exemptions claimed as support for withholding records responsive to Mr. Taylor's request. The Town's February 20th letter noted the existence of an ongoing investigation and issues related to collective bargaining. However, the Town failed to provide any specificity with respect to its exemption claims and is not permitted to issue such a blanket and unresponsive denial without providing any further information with respect to the requested records. The Town is hereby ordered to provide copies of responsive records to Mr. Taylor within ten (10) calendar days, or provide this office and Mr. Taylor with a more detailed explanation of its privilege and exemption claims. Accordingly, this administrative appeal is closed. Supervisor of Records cc: Mr. Seth Taylor