Michael J. Rausch v. Bourne, Town of (SPR 20171178)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 8, 2017 SPR17/1178 Barry H. Johnson Town Clerk/ Records Access Officer Town of Bourne 24 Perry A venue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of Michael Rausch appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on June 14, 2017, Mr. Rausch requested "[a]ny and all reports on file with the town of Bourne pursuant to any investigation performed from January 1, 2017 to June 14, 2017, in the conduct of'' an identified Town of Bourne administrator. In a response dated August 21, 2017, the Town denied his request claiming the common law attorney-client privilege. Unsatisfied with the Town's response, Mr. Rausch petitioned this office and this appeal, SPR17/1178, 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, § 1O A( 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, § 10(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. 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

Barry H. Johnson SPR17/1178 Page 2 September 8, 2017 If there are any fees associated with a response a written, good faith estimate must 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. The Town's August 2Pt response In the Town's August 21st response, the Town indicated that "[b]ased on my review of the minutes of the Board of Selectmen meetings and discussion with Town officials ... [t]he Board of Selectmen requested Town Counsel to hire a private investigator to interview Town employees relative to a reported alleged event. Town Counsel, thereupon, hired a private investigator; the investigator furnished a report to Town Counsel; Town Counsel shared the findings in the report with the Board of Selectmen; the Town does not have a copy of the report in its files." The Town further indicated that, "[t]he Board of Selectmen, in Executive Session, on August, 15, 2017 voted to invoke the provisions of [a ]ttorney-[ c ]lient privilege with respect to the document at issue. 1 have therefore, determined that it is not a 'public record."' Common law attorney-client privilege The Town claimed that the records were withheld 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: (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;

Barry H. Johnson SPR1711178 Page 3 September 8, 2017 (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 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, § 10A(a) (emphasis added). Based on the Town's response, the Town has not sufficiently provided information to indicate how the privilege applies to all the responsive records in Mr. Rausch's request or the grounds upon which the attorney-client privilege is being claimed. The Town must therefore provide further information regarding the records it withheld as privileged. Further, it is unclear whether the privileged content could be segregated. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10 ( a). Any redaction under the attorney-client privilege however, would need to be supported by the standards outlined in Suffolk Constr. Co. Consequently, I find that the Town has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the records. In camera review ofr ecords withheld under a claim ofa ttorney-client privilege G. L. c. 66 § 10A(a) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been withheld on the basis of a claim of the 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. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable

Barry H. Johnson SPR1711178 Page 4 September 8, 2017 privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. The Town may elect to provide this office with umedacted copies of the responsive records for in camera review. However, if it does not elect to do so, the Town must provide an index or a detailed description of the withheld 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 to this office and Mr. Rausch within ten days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. I understand a Public Records Division attorney contacted you to discuss this matter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Rausch