Colman Herman v. Foxborough, Town of - Town Manager (SPR 20160150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords March 11, 2016 SPR16/148; SPR16/149; SPR16/150 Mr. William G. Keegan, Jr. Town Manager Town of Foxb orough 40 South Street Foxborough, MA 02035 Dear Mr. Keegan: I have received the petition of Colman Herman appealing the response ofthe Town of Foxborough (Town) to requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman made requests to three (3) entities within the Town; the Police Department (SPR16/148), Fire Department (SPR16/149), and the Town Manager (SPR16/150). The Town provided responses to these requests and Mr. Herman appealed on the basis that the records provided were not responsive to his request and the exemption claims were improper. As the records are related I will provide one written determination. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1 0( 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). Police Department (SPR16/148) Mr. Herman requested from the Police Department "copies of any and all communications involving" a specifically identified individual "that are in the files of the [Town] Police Department. Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. William G. Keegan, Jr. SPR16!148; SPR16/149; SPR16/150 Page 2 March 11, 2016 In a letter dated February 2, 2016, you responded in your capacity as the Town's "Keeper of Records/Public Information Officer" by providing certain responsive records and withholding/and or redacting others. I find the Town failed to address whether the Police Department possesses any responsive "communications." Further, it is unclear whether the Town intends to withhold "communications" or whether all responsive records would be made available. If the Town is withholding records it must state with specificity how an exemption to the Public Records Law applies to each record. See G. L. c. 66, § 10 ( c). Further, the Town must explain whether responsive communications actually exist within the Police Department. Fire Department (SPR161149) Mr. Herman requested from the Fire Department "copies of any and all communications involving" a specifically identified individual "that are in the files of the [Town] [F]ire [D]epartment. Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes." In a letter dated February 17, 2016, you responded in your capacity as the Town's "Keeper of Records/Public Information Officer" by providing certain responsive records and withholding/and or redacting others. With respect to Mr. Herman's request for "communications" you "assume that you are not requesting copies of other requests for public records regarding this incident" and ask Mr. Herman to "advise if my assumption is unwarranted." You also stated "[a]ll other substantive communications in the possession of my office are hereby provided to you, subject to the conditions/exceptions stated below." In addition, you explain categories of "records" or "communications" maintained by the Town are being withheld "based on medical/confidentiality, individual privacy rights and public safety/security." Further, you indicate the Town is withholding "communications with Town Counsel relative to this matter wherein legal advice or assistance was provided pursuant to attorney/client communication privilege and the deliberative process exemption [Exemption (d)]." 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).

Mr. William G. Keegan, Jr. SPR16/148; SPR16/149; SPR16/150 Page 3 March 11, 2016 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). This response does not address whether the entirety of the communications were received during the course of the client's search for legal advice, nor whether the communications were made in confidence, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. As a result, the Office failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure pursuant to the attorney-client privilege. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (stating that the statutory exemptions are narrowly construed and are not blanket in nature). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, §7 (26)(d) Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office ofHuman Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). However, the Town has not explained how the entirety of the withheld records are recommendations on legal and policy matters as required by Exemption (d). Further, purely factual matter is not exempt from disclosure. Therefore, I find the Town has failed to meet its

Mr. William G. Keegan, Jr. SPR16/148; SPR16/149; SPR16/150 Page 4 March 11, 2016 burden of explaining with specificity how the entirety of responsive communications are exempt from disclosure under Exemption (d). Further, it is unclear whether the Town searched within the Fire Department for responsive records. The Town must explain whether responsive communications actually exist within the Fire Department. Town Manager (SPR16/150) Mr. Herman requested from the Town Manager "copies of any and all communications involving" a specifically identified individual "that are in the files of the [T]own [M]anager. Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes." The Town provided the same February 17 letter discussed above in response to Mr. Herman's request to the Town Manager. As such, it is unclear whether the Town searched for responsive communications in the Town Manager's possession. For the reasons discussed above, I find the Town has not met its burden in responding to Mr. Herman's request to the Town Manager. The Town must explain whether responsive communications actually exist within the files of the Town Manager. Conclusion For the reasons discussed above, I find the Town has failed to properly respond to Mr. Herman's requests for public records. The Town is hereby ordered, within ten (10) days, to provide Mr. Herman with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations. This response must specifically address Mr. Herman's requests to the Police Department, Fire Department, and Town Manager, contain a statement as to records previously provided, and a statement to address remaining records to be provided. If the Town maintains any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Herman 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 ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records.

Mr. William G. Keegan, Jr. SPR16/148; SPR161149; SPR161150 Page 5 March 11, 2016 To assist the Town 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 custodian in person to conduct training workshops on the Public Records Law upon request. Plea e contact my office directly at the telephone number provided in this determination for further · formation. cc: Mr. Colman Herman Mr. Patrick J. Costello, Esq.