Timothy A. Toomey v. Rowley, Town of - Town Administrator (SPR 20180234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 8, 2018 SPR18/234 Ms. Deborah M. Eagan Town Manager Town of Rowley 13 9 Main Street Rowley, MA 01969 Dear Ms. Eagan: I have received the petition of Mr. Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Toomey appeals the response letter sent by the Town's attorney on February 13,2018 citing attorney-client privilege to redact and withhold executive session minutes. 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 must be provided. G. L. c. 66, § 1 O(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

Ms. Deborah M. Eagan SPR18/234 Page 2 March 8, 2018 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). Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A.3d 994, 1001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681, 691, 693 (2000). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at 1002. Mr. Toomey asserts that the Town's attorney Joseph Fair was "never present for the meeting of June 28, 2017. Nowhere is attorney Fair's name on the list of public participants' concerning the June 28, 2017 executive session minutes." Mr. Toomey states that he himself was present at the meeting and never saw Attorney Fair. Mr. Toomey also claims that the attorney client privilege was waived during the executive session meeting because a third party was present. "The executive session had a third party present who observed the meeting 1) Deborah Eagan and 2) Amy Lydon thus giving rise to third party waiver." The Minutes of the Board of Selectmen Meeting indicate that Attorney Fair was a public attendee as Labor Counsel on June 28, 2017 and September 18, 2017. It is unclear whether Attorney Fair had conversations during the meetings that were covered by the attorney-client privilege. The Town also has not demonstrated that third parties were not present during these conversations which would break the privilege. Further, it is uncertain how the responsive records could be redacted or withheld in order to prevent disclosure of certain information, while still preserving any privileged information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In camera review ofr ecords withheld under a claim ofa ttorney-client privilege With respect to any information being withheld under the attorney-client privilege, it should be noted that G. L. c. 66, § 10A(a) discusses the ability ofthe Supervisor ofRecords to conduct an in camera inspection of records withheld on the basis of this privilege. This section provides in pertinent part: ·

Ms. Deborah M. Eagan SPR18/234 Page3 March 8, 2018 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 privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. G. L. c. 66, § lOA(a). As noted above, 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 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). The Town may elect to provide this office with unredacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide a response with further information relating to the substance of any information withheld under the attorney-client privilege and the grounds upon which the privilege is being claimed as contemplated in G. L. c. 66, § lOA(a). Conclusion Accordingly, the Town is ordered to provide Mr. Toomey with a response to the request, 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@sec.state.ma.us. Sincerely, Murr~ Rebecca S. Supervisor of Records cc: Mr. Timothy Toomey