Tom Robinson v. Hubbardston, Town of - Town Clerk (SPR 20170673)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 1, 2017 SPR17/673 Joyce E. Green Town Clerk/Records Access Officer Town ofHubbardston 7 Main Street, Unit #2 Hubbardston, MA 01452 Dear Ms. Green: I have received the petition of Tom Robinson appealing the response of the Town of Hubbardston (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). After receipt ofKP Law, P.C. legal invoices from the Records Access Officer, Mr. Robinson requested "(1) the question by email or other document, asked of the Town Attorney, and (2) the response received by email or other document, from the Town Attorney" relating to the detailed subject matter in KP Law's 2017 invoices, specifically: 1. February 1st-Review email from Town Administrator: Board member claiming unfettered access to all Town records; evaluate response to same, 2. February i 11 Review and analyze Town charter regarding Chief Executive Officer and approval needed by the Board for certain actions; draft opinion, 3. February lOth Analyze Town charter regarding Planning Board draft correspondence to Planning Board member regarding restricted access to file, 4. February 1oth-Email Town Administrator sample order to board member regarding restricted access to files, and 5. February 15th-Respond to email from Town Administrator regarding basis for executive session to discuss complaint against Town official; draft executive session notice to official. In emails dated April 25, 2017 and May 3, 2017, the Town denied access to responsive records under the 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 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

Joyce E. Green SPR17/673 Page 2 June 1, 2017 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 The Town claims the responsive records may be withheld under the attorney-client privilege. A records custodian claiming the attorney-client privilege under the Public Records Law 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). 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). I find the Town must provide a response with further information relating to the substance of the withheld records and the grounds upon which the attorney-client privilege is being claimed as contemplated in G. L. c. 66, § 10A(a). I understand a Public Records Division staff attorney telephoned you and the Town's Legal Counsel, Carolyn M. Murray of KP Law to explain that the Town should provide Mr. Robinson with a supplemental response. Attorney Murray was also provided with a copy of the appeal file via email to assist with the response. Conclusion Accordingly, whereas the Town will provide Mr. Robinson with a supplemental response to the request, I will consider this appeal closed with the proviso that the response is provided, in a manner consistent with this order, the Public Records Law and its Regulations, within ten business days. 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(il),sec.state.ma.us. Mr. Robinson may appeal the substantive nature of the supplemental response within ninety days. 950 C.M.R. 32.08(1).

Joyce E. Green SPR17/673 Page 3 June 1, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Tom Robinson (via email) Carolyn M. Murray, Esq.