Deborah Butler v. Framingham, Town of - Town Manager (SPR 20170511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2017 SPR17/511 Christopher L. Brown, Esq. Town of Framingham Town Counsel Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 Dear Attorney Brown: I have received the petition of Deborah Butler appealing the response of the Town of Framingham Town Counsel (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Butler requested a copy of the report from Lisa Brodeur McGan, Esq. that was submitted to the Town. Status of the requester and reason for the request Ms. Butler informed this office in her petition that she is the subject of the complaint made by Town employees, and that she is entitled to the investigation report to resolve her guilt or innocence. It is important for Ms. Butler to understand that her status or interests in the underlying matter which was investigated by an attorney hired by the Town does not afford her any greater right of access to the requested information under the Public Records Law. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Butler's status will play no role in a determination as to whether the records should be disclosed to the public. Prior appeals and determinations The requested report was the subject of two (2) prior appeals and determinations. See SPRl 7/216 and SPRl 7/348 Determinations of the Supervisor of Records (February 28, 2017 and March 31, 2017). In my March 31st determination, I found that the Town had not met its burden of withholding the report in its entirety pursuant to the personnel clause of Exemption (c) and the common law attorney-client privilege. The Town agreed to provide Ms. Butler with a supplemental response which clarifies its claims. 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

Christopher L. Brown, Esq. SPR17/511 Page 2 April 25, 2017 On April 14t\ the Town provided Ms. Butler with a redacted copy of the executive summary report to protect the witness identification under Exemption (f) and the medical and reputational information pursuant to Exemption (c). You explained in your April 14th letter that accompanied the report that the Town has no additional reports, the report provided is the final report that the Town received from Attorney Brodeur-McGan. At issue in the current appeal is the full redaction of the section of the report entitled, "Conclusions and Recommendations." The Town has claimed that the conclusions and recommendations are protected by the common law attorney-client privilege. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); 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). 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. Common law attorney client privilege In your March 13th and April 14th letters, you explain that the Town has redacted the legal advice provided by Attorney Brodeur-McGan to the Town based on her investigation findings pursuant to the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). In your March 13th letter you stated that the report was submitted to the Town regarding the investigation into employee complaints that were made against Ms. Butler. The report was made in confidence, intended only for Town officials to review in confidence, and that the communications set forth in Attorney Brodeur-McGan's report have not been waived. 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 of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the

Christopher L. Brown, Esq. SPR17/511 Page 3 April 25, 2017 affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. 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 Foster v. Hall, 12 Pick. 89, 93, (1831). 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 of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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). Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records shall not inspect the record but "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § IOA(a) (emphasis added). It seems that additional information could be provided to indicate how the privilege applies to the entire "Conclusions and Recommendations" section of the report. Therefore, I find that the Town has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the content in its entirety in the report's Conclusions and Recommendations section. Upon review of the report provided to Ms. Butler, the name of the author and recipient of the report is evident. However, I find that the Town should provide Ms. Butler and this office with further information relating to the date the report was provided to the Town and the substance of the redacted information along with the grounds upon which the attorney-client privilege is being claimed. Accordingly, the Town is hereby ordered to provide Ms. Butler with a response

Christopher L. Brown, Esq. SPRl 7/511 Page 4 April 25, 2017 concerning the Town's attorney-client privilege claim to withhold the conclusions and recommendations in the report, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the 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, Rebecca S. Murray Supervisor of Records cc: Robert J. Halpin Deborah Butler