Ronald Alexander v. Wellesley, Town of (SPR 20171418)

The Coimmsnweakth of Massachusetts William Francis Galvin, Secretarjr of the Commonwealth Public Records Division Rebecca S Murray Supervrsor of Records October 19,201 7 SPRl7/1418 Meghm C. Jop TOMToIf Wellesley 525 M~ashngtonS treet Wellesley, MA 02482 Dear Ms. Jop: I have received the petidon of Ron Alexander appealing the response of the Town of 5 Wellesley (Town) to a request for public records. G. L. c. 66, IOA; see also 950 C.M.R. 32.08(1). Specifically, on August 29,2017 , Mr. Alexander requested to inspect "[all1 documents, correspondence, drafts, and revisions related to 'Work on Petition' line items in February 201 7 To~mCo unsel invoices." Mr. Alexander mentioned that he preferred to inspect "[all1 documents related to this work, including requests from client(s) to perform this work, any and all drafts and revisions of this petition, records of phone calls and emails related to the ~7orko n this petition." The Town provided a response dated September 12, 2017, in which it provided a number of records and denied access to portions of the responsive records claiming that the records were protected by the attorney-client privilege and/or attorney work product doctrine. Unsatisfied with the Town's response, Mr. Alexander petitioned ths office and this appeal, SPR1711418, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 5 governmental records are public records. G. L. c. 66, 10A(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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 11 (19 95) (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: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Meghan (3. Jop Page 2 October 19,201 7 If there are any fees associated with a response a written, good faith estimate must be provided. 6.L ,c . 46, 5 1O (b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. hdr. Alexander is reminded that the Guide to Massachusetts Public Records Law (Guide) has been updzted. Therefore, Mr. Alexander should refer to the updated Guide in future appeals to this office. The Town's Sep~eanber1 ~~re's'p onse In its September 12 thr esponse, the Town indicated that it withheld certain documents responsive to Mr. Alexander's request in their entirety because they are protected by the attorney-client pri~rilegea ndlor attorney work product doctrine. The Town also provided a privilege log to Mr. Alexander whch describes 43 emails it withheld from disclosure. Common law attorney-client privilege With respect to records being withheld under the attorney-client privilege, please note that a records custodian claiming the attorney-client pri~~ileguned er 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 h/lgmt., 449 h4ass. 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Senis., 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. Comrn'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). In the Town's response, it indicated that, ". . . a request to an attorney to perfom legal work is unambiguously a communication made by a client to an attorney for the purpose of obtaining legal advice. There is no reasonable basis for this request as it seeks documents that are at the very core of the attorney-client privilege." The Town also indicated that it was withholding a draft petition because it conveyed counsel's opinions, legal theories, and conclusions as to questions for which the Town sought legal advice. TZle Town explained that, although it recognizes that the second and third elements of the attorney client privilege limits the scope of the privilege to private communications that have not been shared with thrd parties, the draft petition which was shared with the Executive Director and other attorneys is nevertheless exempt from disclosure because "the involvement of each of these individuals was necessary or highly useful to proper consultation regarding a legal matter . . ."

Meghan C. Jop Page 3 October 19, 20 17 Exemption (d) Work product docpine - The Tom7n indicated it withheld portions of the responsive record under Exemption (d) of the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on ~7hichth e development of such policy positions has been or may be based Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is Iimited to recoinmendations on legal and policy matters found within an ongoing deliberative process. Babets Sec'v of the Exec. Office 11. of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4; 57 (26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 88 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). To support its Exemption (d) claim to withhold the draft petition in its entirety under the attorney work product doctrine, the Town cited the Supreme Judicial Court (SJC) decision in DaRosa v. New Bedford, 471 Mass. 446 (2015). The Tomin indicated that "the draft was prepared in reasonable anticipation of litigation." The Town explained that "it had consistently taken the position that many of your requests constitute harassment and anticipates litigation, whether in court or through administrative appeals such as you have filed with the Supervisor, regarding the Town's response to your requests. The draft petition was created with those positions in mind and with the expectation that the positions taken by the Town may be litigated. The Town anticipates that such litigation is still a real possibility. The draft is interwoven with counsel's mental impressions, theories and legal strategies designed with such litigation in mind bd, therefore, constitutes opinion work product protected from disclosure under Exemption (d) to the Public Records Law." Ln DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Chi. P. 26@)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id,

Meghan C. 3op Page 4 October 19, 20 17 As required by the Public Records Regulations, 950 f2.h.I.R. 32.06(?)(d), the Tom provided a privilege log describing 43 emails that it withheld under the attorney-client privilege. Upon review of the Town's log, the names of the author; recipients, dates, and subject matter of emails of the records are evident. Therefore, whereas the Tom provided a privilege log to Mr. Alexander and claims that the responsive records were made in confidence by a client, the T o m for the purpose of obtaining legal advice from its counsels, and the privilege has not been waived, I fmd that the Town has met its burden of specificity in applying the attorney-client privilege and may permissibly withhold responsive records from disclosure. Further, based on the To'ivn's response which indicates the draft petition constitutes "opinion" work product; prepared in anticipation of litigation, I find that coupled with the nature of the relationship between the Town and Mr. Alexander, it is reasonable for the Town to anticipate litigation. Consequently, the application of DaRosa is appropriate to withhold records under the attorney work product doctrine. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas 1 find the T o ~hnas met its burden to withhold the responsive records under the attomey-client privilege and work product doctrine, I will consider this administrative appeal closed. Rebecca S. Murray Supeniisor of Records cc: Ron Alexander