Kim Sherwood v. Topsfield, Town of - Planning Board (SPR 20171102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2017 SPR17/1102 Donna C. Rich Town of Topsfield-Planning Board 8 West Common Street Topsfield, MA 01983 Dear Ms. Rich: I have received the petition of Kim Sherwood appealing the response of the Town of Topsfield Planning Board (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, on August 1, 2017, Ms. Sherwood requested "the documents from counsel to support her opinion that the proposal in the Citizen Petition was not doable if passed, which is assumed to mean that it would not have to be carried out." On August 10, 2017, the Town denied her request claiming the common law attorney-client privilege. Unsatisfied with the Town's response, Ms. Sherwood petitioned this Office and this appeal, (SPR17/1102), was opened as a result. 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, § lO(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. If there are any fees associated with a response a written, good faith estimate mu~t be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Donna Rich SPR17/1102 Page2 August 18, 2017 The Town's August 1 ottz response In its August lOth response the Town indicated that "[b] ased upon our understanding of your request, there is a responsive record, however, the Town is withholding it pursuant to [a]ttorney-[c]lient [p]rivilege." The Town indicated that "[y]our description ofthe documents requested appears to come from an email from one of the Selectmen, in which he purports to describe his understanding, in general terms, of Town Counsel's opinion with respect to a Citizen Petition appearing on the June 20, 2017 Special Town Meeting warrant." The Town also indicated that "[t]he Town has interpreted your request to be seeking any actual written opinion(s) from Counsel in this regard." The Town further indicated that, "[t]he record being withheld at this time is [e]mail from" a specific counsel to a specific individual, "dated May 20, 2017, discussing the implications of proposed Article Second, a petitioned article relative to the Town Hall project. It is my position that this email reflects communication made in confidence, for purposes of providing legal advice solicited by me, and that I havenot waived the attorney-client privilege with respect to such communication." Common law attorney-client privilege The Town indicated that it withheld responsive record under the common law attorney client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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. Comm'r 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., 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 Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. 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:

· DonnaRich SPR17/1102 Page 3 August 18, 2017 (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. SuffolkConstr. Co., 449 Mass. 450, fn 9, citing Matter ofthe Reorganization ofElec. 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 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). Whereas the Town has provided the names of the author and recipient of the email, the date, the substance of the record, and indicated that the responsive record was made in confidence by one of the Selectmen, for the purpose of obtaining legal advice from Counsel in regards to the implications of a proposed Article second of the Town Hall Project, and the privilege has not been waived, I find that the Town has met its burden of specificity in applying the attorney-client privilege and may permissibly withhold the responsive record from disclosure. Conclusion Accordingly, the Town may permissibly withhold responsive information pursuant to the common law attorney-client privilege. I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kim Sherwood