Nada Milosavljevic-Fabrizio v. Westwood, Town of - Town Administrator (SPR 20181409)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 3, 2018 SPRlS/1409 Michael Jaillet Town Administrator Town of Westwood 580 High Street Westwood, MA 02090 Dear Mr. Jaillet: I have received the petition of Nada Milosavljevic-Fabrizio appealing the response of the Town of Westwood (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 7, 2018, Ms. Milosavljevic-Fabrizio requested "any and all Statements of Financial Interest Law disclosure forms together with any and all incidental and ancillary documents submitted by [ an identified individual] for the calendar year beginning January 1, 2014 to present date, i.e., August 7, 2018, including, but not limited to, written requests/correspondence to and from the town counsel and/or town administrator in connection with same." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1312 Determination of the Supervisor of Records (September 12, 2018). I closed SPR18/1312 upon notification that the Town provided Ms. Milosavljevic-Fabrizio with another response, dated August 31, 2018. Specifically taking issue with the Town's attorney-client privilege claim, Ms. Milosavljevic Fabrizio petitioned this office and this appeal, SPR18/1409, 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 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). 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

Michael Jaillet SPR18/1409 Page 2 October 3, 2018 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, § 1O (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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Common law attorney-client privilege In the Town's response dated August 13, 2018, the Town indicates that "[c]orrespondents [sic] between Selectwoman ... and Town Counsel will not be reviewed or released due to 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 has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the Town did not explain how the records are communications received during the course of the client's search for legal advice, or whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. In addition, the Town has not identified the specific records that it believes fall under the attorney-client privilege. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460.

Michael Jaillet SPR18/1409 Page 3 October 3, 2018 Order Accordingly, the Town is ordered to provide Ms. Milosavljevic-Fabrizio 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. Murray Supervisor of Records cc: Nada Milosavljevic-Fabrizio