Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20180830)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 22, 2018 SPR18/830 Thomas J. Mc Quaid, CPA Town ofNorwood-Town Clerk 566 Washington Street, Room 27 P. 0. Box40 Norwood, MA 02062 Dear Mr. McQuaid: I have received the petition of Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 28, 2017, Mr. Donovan requested the Norwood Airport Commission meeting minutes for calendar years 2007, 2008, 2010, 2012, and 2013. Previous appeals This request was the subject of previous appeals. See SPR18/222 Determination of the Supervisor of Records (March 6, 2018); SPR18/402 Determination of the Supervisor of Records (April 10, 2018); SPR18/599 Determination of the Supervisor of Records (May 14, 2018). In my May 14th determination, I found that the Town had not met its burden to withhold executive session minutes under Exemptions (a) and (c), and the attorney-client privilege. As such, I ordered the Town to provide Mr. Donovan with a response in a manner consistent with the order, the Public Records Law, and its Regulations. Following the May 14th determination, the Town provided a response on June 1, 2018, which included responsive records, with specific executive session minutes redacted. The Town claims the redactions were made pursuant to the attorney-client privilege. Unsatisfied with the Town's response, Mr. Donovan petitioned this office and this appeal, SPR18/830 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Thomas J. McQ uaid, CPA SPR18/830 Page 2 June 22, 2018 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. The Town's June 1st response In its June 1, 2018 response, the Town indicates that it is providing Mr. Donovan with portions of the responsive records unredacted. With respect to the the redacted executive session minutes, the Town claims these records were redacted pursuant to the attorney-client privilege. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. The Town claims the redacted portions are protected under the attorney-client privilege because they are communications and advice received from attorneys regarding waiving airport standards, termination of leases, litigation before the Federal Aviation Administration (FAA), and compliance under the Fair Labor Standards Act. The Town claims the information was delivered or discussed "in a confidential executive session and the privilege has not been waived."

Thomas J. McQuaid, CPA SPR18/830 Page 3 June 22, 2018 Although the Town claims the information redacted was advice from attorneys, it is unclear how the attorney-client privilege may apply to some of the executive session minutes. Particularly, Mr. Donovan claims in his appeal that attorneys were not present in the November 10, 2010 and May 8, 2013 executive sessions. As such, it is unclear how the privilege applies to these records. The Town must clarify this matter. 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, § lOA(a) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of this 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 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). Consequently, the Town must provide a detailed description of the records which includes the aforementioned information. Additional records In his appeal, Mr. Donovan indicates that he was not provided with the executive session minutes from the following dates: June 18, 2007; November 7, 2007; November 20, 2007; December 12, 2007; May 14, 2008; July 9, 2008; September 10, 2008; January 13, 2010; and September 8, 2010. Mr. Donovan further notes that he was not provided with the regular session minutes held on October 21, 2008. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the

Thomas J. McQuaid, CPA SPR18/830 Page 4 June 22, 2018 time of the request. See G. L. c. 66, § lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5)(b ). The Town must confirm whether it possesses such records and provided them in accordance with the Public Records Law and its Regulations. I understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Donovan 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, !4hurx~ Rebecca S. Murray Supervisor of Records cc: Christopher Donovan