Deborah Butler v. Framingham, Town of - Town Manager (SPR 20170648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 24, 2017 SPR17/648 Christopher L. Brown, Esq. Town of Framingham Legal 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) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Butler requested a copy of a report drafted by outside legal counsel, Attorney Lisa Brodeur-McGan, concerning her investigation of employment complaints. The Town provided Ms. Butler with the report in redacted format under Exemptions (c), (f) and the common law attorney-client privilege. Status of the requester and reason for the request Ms. Butler informed this office in her petition that she is the subject of the complaints 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 three (3) prior appeals and determinations. See SPRl 7/216, SPRl 7/348 and SPRl 7/511 Determinations of the Supervisor of Records (February 28, 2017, March 31, 2017 and April 25, 2017). In my March 31, 2017 determination, I found that the Town had met its burden in withholding certain portions of the report under Exemptions (c) 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. SPR17/648 Page2 May 24, 2017 and (f), and not met its burden of withholding the entire report pursuant to those exemptions. I also found that the Town had not met its burden of withholding the report in its entirety under the common law attorney-client privilege. The Town agreed to provide Ms. Butler with a supplemental response which clarifies its claims. On April 14th, 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. The Town redacted the entire section of the report entitled, "Conclusions and Recommendations." In its April letter, the Town claimed that the conclusions and recommendations are protected by the common law attorney-client privilege. In my April 25th determination, I ordered the Town to provide Ms. Butler with a response to support its attorney client privilege claim to withhold the Conclusions and Recommendations section. See SPRI 7/511 Determination of the Supervisor of Records (April 25, 2017). 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, § IOA(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, § 1O (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). Common law attorney client privilege In your March 13th and April 14th letters, you explained that the Town 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 an identified person. 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

Christopher L. Brown, Esq. SPR17/648 Page 3 May 24, 2017 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. Comm'r 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 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 Blee. 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, § lOA(a) (emphasis added). In my April 25th determination, I found that additional information could be provided to indicate how the privilege applies to the entire Conclusions and Recommendations section of the report. Our review of the redacted report revealed the name of the author and recipient of the report; however, the Town did not provide the date of the report and substance of the redacted information along with the grounds upon which the attorney-client privilege is being claimed.

Christopher L. Brown, Esq. SPR17/648 Page 4 May 24, 2017 Therefore, on April 25t\ I found that the Town had 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. In camera review of the un-redacted Conclusions and Recommendations section The basis of the current appeal is Ms. Butler's petition to the Supervisor of Records regarding the Conclusions and Recommendations section of the report that was withheld in its entirety under the common law attorney-client privilege. In her petition, she asked the Supervisor of Records to conduct an in camera review of this section of the report, and render a determination on the Town's attorney-client privilege claim to withhold the Conclusions and Recommendations section of the report. As previously stated in this determination, under the new provisions in the Public Records Law, the Supervisor of Records has no authority to mandate that a records custodian provide this office with a copy of records withheld under the common law attorney-client privilege for a review of the records. See G. L. c. 66, § IOA(a). However, whereas the Town has voluntarily submitted the section of the report to this office for an in camera review, and in doing so has not waived its attorney-client privilege by submission of the record to the Supervisor for review, this office was able to conduct a review of the section in question. See 950 C.M.R. 32.08(4)(f). I would like to thank the Town for its cooperation. Upon reviewing the section in question in camera, I find that it contains seven paragraphs of Attorney Brodeur-McGan's conclusory legal findings, and nine paragraphs of Attorney Brodeur-McGan's l~gal opinions (advice) regarding possible actions, liabilities, preventive measures including policies and procedures that the Town may consider revisions to or instituting. The purpose that the Town hired Attorney Brodeur-McGan was to conduct an employment-type investigation based on the employee complaints through the Town's Human Resource Department, provide her legal opinions and advice on whether the complaints were substantiated, and to advise the Town on current preventative measures and liabilities and possible future preventive measures and liabilities. The withheld information is the legal advice that the Town was seeking from Attorney Brodeur-McGan, as outside legal counsel, and the legal advice she provided to the Town as a result of the attorney-client relationship. It is my understanding that this report was provided to the Town in a confidential manner, has not been shared with anyone other the client (the Town), and was only provided to this office, confidentially and solely to conduct an in camera review. Therefore, the Town did not compromise or waive the attorney-client privilege by submission of the section of the report to this office. Accordingly, I find that Town has met its burden of proving that the Conclusions and Recommendations section of the report has been properly withheld from public disclosure under the common law attorney-client privilege. Consequently, this administrative appeal is closed.

Christopher L. Brown, Esq. SPR17/648 Page 5 May 24, 2017 If Ms. Butler is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~r~ Supervisor of Records cc: Deborah Butler Robert J. Halpin