Kathryn E. Gallagher v. Wenham, Town of - Town Administrator (SPR 20180577)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 9, 2018 SPR18/577 Peter Lombardi Town of Wenham-Town Administrator 13 8 Main Street Wenham, MA 01984 Dear Mr. Lombardi: I have received the petition of Kathryn Gallagher appealing the response of the Town of Wenham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 27, 2018, Ms. Gallagher requested the following categories of records: "1. Any communication or correspondence referring to, concerning, reflecting or relating to 'Gallagher,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 2. Any communication or correspondence referring to, concerning, reflecting or relating to 'Phippen,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 3. Any communication or correspondence referring to, concerning, reflecting or relating to '253 Larch Row,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 4. Any communication or correspondence referring to, concerning, reflecting or relating to 'Hurdle Hill Farm,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 5. Any communication or correspondence referring to, concerning, reflecting or relating to 'bed & breakfast,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 6. Any communication or correspondence referring to, concerning, reflecting or relating to 'short-term rental,' made, recorded, received, requested, or distributed by any 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

Peter Lombardi SPR18/577 Page 2 May 9, 2018 employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 7. Any communication or correspondence referring to, concerning, reflecting or relating to 'Airbnb,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request." The Town provided a response on April 10, 2018, providing a fee estimate and indicating that records may be withheld or redacted pursuant to Exemption ( d) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(d). Unsatisfied with the Town's response, Ms. Gallagher petitioned this office and this appeal, SPR18/577, was opened as a result. Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Gallagher's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Ms. Gallagher may wish to consider another means of seeking to obtain any existing responsive records. 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

Peter Lombardi SPR18/577 Page 3 May 9, 2018 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. The Town's April 1 rfh response In its April 10, 2018 response, the Town posits that Ms. Gallagher's request for records is not a public records request, because Ms. Gallagher has a unique right of access. The Town explains that Ms. Gallagher is currently the plaintiff in litigation pending before the "Essex Superior Court captioned Kathryn Gallagher (Kate)-Representative Phippen Family Trust and William and Henry Phippen-Trustees Phippen Family Trust v. the Town of Wenham Board of Appeals, Planning Board, and Planning Coordinator, Docket No. 1777CV01193." The Town asserts that "[t]his matter involves, among other claims, [Ms. Gallagher's] appeal of a special permit granted with conditions for operation of a bed and breakfast" at a specified address. As such, the Town asserts that by virtue of Ms. Gallagher's "status as a litigant in that proceeding, [her] rights and ability to obtain discovery of documentation from the Town is governed by the Massachusetts Rules of Civil Procedure and any other applicable rules/limitations given in the nature of the cause of action." However, in responding to the totality of Ms. Gallagher's records request, the Town indicated that it reserves its right to withhold or redact responsive records under Exemption (d) of the Public Records Law and the attorney-client privilege. The Town also assessed a fee for the production of responsive records. Exemption (d ) The Town stated that it withheld responsive records pursuant to Exemption (d) of the Public Records Law. Exemption ( d) allows the withholding of: 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 which the development of such policy positions has been or may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec.

Peter Lombardi SPR18/577 Page 4 May 9, 2018 Office 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, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under its Exemption (d) claim, the Town indicated that it "may withhold or redact 'inter- . agency or intra-agency memoranda or letters relating to policy positions being developed by the [public body].'" The Town cited the Babets decision and other cases to support this position. The Town also cited Lafferty v. Martha's Vineyard Commission, Superior Court, C.A. No. 03-3397, 2004 WL 792712, which found that"' [t]he preparation of and involvement in litigation by [a public body] inherently entails the development of 'policy positions' by that [public body]."' As such, the Town asserts that "given the pendency oflitigation brought by [Ms. Gallagher] against Town boards and officials, and related to several of the items requested, it is likely that responsive records will contain information concerning the Town's litigating position and/or defense strategy in currently pending litigation, and they may be withheld or redacted according! y." Common law 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. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 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). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Under the attorney-client privilege claim, also citing Suffolk, the Town indicated that "it is expected that some of the communications sought ... may contain attorney-client privilege information, in that they reflect communications between counsel and the Town, as well as work performed by counsel in their defense of the Town in pending litigation. The Town has not waived the attorney-client privilege with respect to such communications." Public records subject to a dispute in active litigation In the Town's response, the Town indicated that several of the responsive records "will contain information concerning the Town's litigation position and/or defense strategy in currently pending litigation ..." In Ms. Gallagher's appeal, recognizing that there is an on-going litigation which was filed by her partners and her, Ms. Gallagher contend~ that the matter involves "an appeal of substantive amendments made after a decision was rendered, voted upon,

Peter Lombardi SPRIS/577 Page 5 May 9, 2018 and a hearing on the matter was closed by the Wenham Zoning Board of Appeals." As such, Ms. Gallagher contends that the active litigation "is not an appeal of the decision itself, rather the misrepresentatiqn of the decision in written form." Based on the Town's response, in conjunction with Ms. Gallagher's claim in her appeal, I find that the Town must provide further information as to whether the public records in question are the subject of a dispute in active litigation. Pursuant to 950 C.M.R. 32.08(2)(b) , the Supervisor of Records may deny an appeal if "the public records in question are the subjects of disputes in active litigation ..." I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Town is hereby ordered to provide Ms. Gallagher 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, Rebecca S. Murr~ Supervisor of Records cc: Kathryn Gallagher