Timothy A. Toomey v. Rowley, Town of - Town Administrator (SPR 20180382)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2018 SPR18/382 Ms. Deborah M. Eagan Town Manager Town of Rowley 139 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 March 22, 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, § 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

Ms. Deborah M. Eagan SPR18/382 Page 2 April 6, 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) (c iting 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. In a March 23, 2018 email, Mr. Toomey asserts that the Town's attorney Joseph Fair was not in attendance at the meeting of June 28, 2017. Mr. Toomey also claims that the attorney client privilege was waived during the executive session meeting because a third party was not present thus giving rise to attorney client exemption. 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. The Town makes it clear in the March 22nd letter to Mr. Toomey that Attorney Fair had conversations during the meetings that were covered by the attorney-client privilege. The Town also demonstrated in the March 22nd letter that the third parties who worked for the Town were present during these conversations upholding the privilege. Further, in light of the Town's March 22nd response, I find the Town has met its burden in responding to this request. G. L. c. 66, § IO(a). Open Meeting Law Mr. Toomey's appeal is related to the release of executive session minutes which raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the content of the executive session minutes. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue.

Ms. Deborah M. Eagan SPR18/382 Page 3 April 6, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Timothy Toomey