Gerard F. Russell v. Charlton, Town of - Town Administrator (SPR 20181540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 1, 2018 SPRlS/1540 Robin L. Craver Town Administrator Town of Charlton 3 7 Main Street Charlton, MA 01507 Dear Ms. Craver: I have received the petition of Gerald Russell appealing the response of the Town of Charlton (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2018, Mr. Russell requested "any communication between your office and Valley Green Grow LLC, and or any state agency, and or company, including public utilities, regarding any plans by any entity, to connect to the Kinder Morgan natural gas pipeline on property 44 Old Worcester Road, Charlton Orchards." The Town provided a response on October 11, 2018, indicating that there are no responsive records. On the same day, Mr. Russell clarified his original request indicating that he is " ... seeking any communication regarding a potential, or planned, connection." The Town provided a response on October 14, 2018, denying access to a responsive record 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, Mr. Russell petitioned this office and this appeal, SPR18/1540, 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). 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 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

Robin L. Craver SPR18/1540 Page 2 November 1, 2018 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. The Town's October 14th response In its October 14, 2018 response, the Town, citing the language of Exemption (d), indicated that " ... the draft RFEI, which is not final and requires substantial further discussion, deliberation and policy evaluation, may be withheld under Exemption D of the Public Records Law. ..." The Town further indicated that "[t]he document might also be covered by the attorney-client privilege, since it is a confidential draft prepared by [KP Law] at [the Town's] request." Exemption (d ) The Town claims it withheld the draft RFEI 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. 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). 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

Robin L. Craver SPR18/1540 Page 3 November 1, 2018 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). Also, 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. 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). Burden of specificity; segregable portions The Town's response did not contain the specificity required in a denial of access to records. Although the Town claims that the" ... draft RFEI, which is not final ... requires substantial further discussion, deliberation and policy evaluation," it is unclear what policy positions are being developed or how disclosure of the record would taint the on-going deliberative process. Also, I find the Town has not established how the responsive record is an inter-agency or intra"agency memorandum or letter as required by Exemption (d). In particular, the Town has not demonstrated that the responsive record was only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra agency" under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption ( d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). Further, it is unclear how the record may be withheld in its entirety. The Town must determine whether there are any portions of the responsive record that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town is advised that any information contained in the records that is factual in nature may be subject to disclosure as Exemption ( d)

Robin L. Craver SPR18/1540 Page 4 November 1, 2018 does not apply to such information. With respect to the attorney-client privilege claim, the Town indicated that "[t]he document might also be covered by the attorney-client privilege, since it is a confidential draft prepared by [KP Law] at [the Town's] request." However, I find the Town has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the Town did not explain how the record is a communication received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. The Town must first apply the three-step test in Suffolk to prove that the record falls under the protection of the attorney-client privilege and cannot be disclosed to the public. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Town is ordered to provide Mr. Russell with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten }?usiness 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: Gerald Russell