John W. Steinmetz, Esq. v. Cohasset, Town of - Town Manager (SPR 20160041)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 18, 2016 SPR16/041 Mr. Christopher G. Senior Town of Cohasset Town Manager 41 Highland A venue Cohasset, MA 02025 Dear Mr. Senior: I have received the petition of John Steinmetz, Esq. appealing the response of Town of Cohasset (Town) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, in a request dated January 2, 2016, Attorney Steinmetz requested twelve categories of records. This request is related to the subject matter of a previous appeal. See SPR15/729 Determination ofthe Supervisor of Records (December 18, 2015). The Town responded in a letter dated January 13, 2016 in which it provided certain records, offered a fee estimate for the provision of other records, and explained certain records do not exist. In addition, the Town withheld records responsive to Attorney Steinmetz's Request 7, citing the common law attorney-client privilege. Attorney Steinmetz appealed this response. Subsequent to the opening of this administrative appeal an attorney on my staff provided a copy of the notice of this appeal to a representative from the Town's outside counsel. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Christopher Senior SPR16/041 Page2 February 18, 2016 Common law attorney-client privilege The attorney-client privilege protects confidential communications between an attorney and his client. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614-15 (1993). In order for the claim of attorney-client privilege to be valid, the custodian 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). The Town's January 13 response denied access to records responsive to Request 7 "[t]o the extent" such records exist. The Town has not met its burden to determine whether any responsive records exist. Further, I find the Town's response fails to meet the burden of specificity to justify withholding records responsive to Request 7 pursuant to the common law attorney-client privilege. See Suffolk, 449 Mass. at 450 n.9. Conclusion I find the Town has failed to meet its burdens of specificity in responding to a request for public records. Accordingly, the Town is hereby ordered, within ten (10) days ofthis order, to provide Attorney Steinmetz with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Town maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Steinmetz a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records.

Mr. Christopher Senior SPR16/041 Page 3 February 18,2016 To assist the Town in responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records cu todian in person to conduct training workshops on the Public Records Law upon request. lease contact my office directly at the telephone number provided in this determination rthe information. Enclosure cc: Mr. John Steinmetz, Esq. Mr. Louis Ross, Esq.