Julie Farrell v. Templeton, Town of - Town Administrator (SPR 20170051)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 23, 2017 SPR17/051 Carter Terenzini Town Administrator Town of Templeton 160 Patriots Road; P.O. Box 620 East Templeton, MA 01438 Dear Mr. Terenzini: I have received the petition of Julie Farrell appealing the response ofthe Town of Templeton (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Farrell requested copies of detailed legal invoices from August 2016 to October 2016. The Town provided Ms. Farrell with legal invoices which were redacted of all detail and claimed that the attorney client privilege, Exemption (b) and Exemption (d) of the Public Records Law allow the Town to withhold the detailed content within the invoices. Ms. Farrell appealed. Prior appeals The requested records were the subject of two prior appeals and determinations by this office. See SPR16/1085 and SPR16/1155 Determinations ofthe Supervisor of Records (December 2nd and Dec~mber 16, 2016). In the Supervisor ofRecords December 16th determination, the Town was ordered to provide Ms. Farrell with a detailed response or privilege log which specifically explained what exemptions allow the Town to redact content from the legal invoices, and how that exemption applies to each redacted invoice. The Town's response On December 28t\ the Town provided a one-page letter that merely states, "Exemption (b) related solely to internal personnel rules and practices, Exemption (d) inter-agency memoranda relating to policy positions being developed, and that the attorney client privilege regarding confidential communications between governmental entities and their legal counsel apply" to allow the Town to withhold content in the legal invoices. After the December 2nd determination was issued and received by the Town, an attorney on my staff had a telephone conversation with you to explain that the Town had not properly One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Carter Terenzini SPR17/051 Page 2 January 23, 2017 responded to Ms. Farrell's request for detailed legal invoices. You were provided with instructions and guidance regarding the proper level of specificity that is required of a records custodian in claiming any common law privilege or exemption in the Public Records Law to withhold content from a public record. Further, the December 161 h determination set-out the requirements of the Public Records Law. However, the Town has still failed to properly respond to a request for public records. The Town's response is merely a partial recitation ofthe language in Exemption (b) and (d), and submission to Ms. Farrell of a page regarding the attorney client privilege in this office's instruction book entitled, The Guide to the Massachusetts Public Records Law. The Public Records Law "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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. Exemption (b) The Town indicated that it withheld content from the legal invoices pursuant to Exemption (b) ofthe Public Records Law. Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7 (26)(b) For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. The Town has not demonstrated that the redacted content from the legal invoices relates solely to the internal personnel practices of the Town, nor has it demonstrated that release of the redacted content will inhibit proper performance of necessary government functions.

Carter Terenzini SPR17/051 Page 3 January 23, 2017 Exemption (d) The Town redacted portions of the legal invoices pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to: 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. Babets v. Secretary ofthe Executive Office of Human Services, 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 Environmental 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.). The Town has failed to provide any support for its Exemption (d) claim to withhold content from the legal invoices. Attorney-client privilege The Town has twice indicated that certain of the content in the legal invoices may be withheld pursuant to a claim of a common law attorney-client privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Commissioner ofthe Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. 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, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Fosterv. Hall, 12 Pick. 89, 93, (1831).

Carter Terenzini SPR17/051 Page 4 January 23, 2017 The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter ofthe Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. The Town failed to produce such an index in its November 7, 2016 and December 28, 2016 responses. Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A.3d 994, 1001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681,691, 693 (2000). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at 1002. The Town has still failed to support its claim that the attorney client privilege applies to withheld content from the requested legal invoices. Order I find the Town has failed to properly respond to a request for public records. Accordingly, the Town is hereby ordered to provide Ms. Farrell with a privilege log regarding the redactions and must specifically explain how the exemptions apply to each individual legal invoice that has been redacted, within ten (1 0) days, and in a manner consistent with this order, the Public Records Law and its Regulations. 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. Sincerely, {JJJWA YJI1J)/V~_ Rebecca S. Murray Supervisor of Records cc: Julie Farrell