Steven Ballard v. Acton, Town of - Town Clerk (SPR 20181702)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2018 SPR18/1702 Eva Szkaradek Town Clerk Town of Acton 4 72 Main Street Acton, MA O1 720 Dear Ms. Szkaradek: I have received the petition of Attorney Steven Ballard appealing the response of the Town of Acton (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 18, 2018, Attorney Ballard requested "a copy of each document created or produced at any time from January 2018, to the present date, and in the possession, custody or control of the government of the Town of Acton, meeting the following description: Any appraisals of the real estate parcels currently in the immediate vicinity of, or subject to any lease by, the KMart store located in the Kelley's Corner area of Acton, as well as any documents related to any such appraisals, including but not limited to any emails, letters, contracts, and other documents evidencing any application, request, response, and any other communication, to and from the Acton Board of Selectmen and the appraiser(s) contracted to conduct any such appraisals. I further request any agendas, draft minutes, approved minutes, and any other documents related to any public meeting of the Acton Board of Selectmen at which any such appraisal was the subject of deliberation." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1488 Determination of the Supervisor of Records (October 24, 2018). I closed SPR18/1488 by ordering the Town to provide Attorney Ballard 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. Subsequently, the Town provided Attorney Ballard with another response. Unsatisfied with the Town's response, Attorney Ballard petitioned this office and this appeal, SPRl 8/1702, was opened as a result. 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

Eva Szkaradek SPR18/1702 Page 2 November 28, 2018 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, § 1 O(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, § 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. Common law attorney-client privilege In a response dated November 9, 2018, the Town indicates that it has "removed all attorney-client privileged communications, as is permitted by Suffolk Contr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) and required under the Rules of Professional Conduct." 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.

Eva Szkaradek SPR18/1702 Page 3 November 28, 2018 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, nor 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 into 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. Additional responsive records 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Although the Town provided Attorney Ballard with some responsive records, based on its response, in conjunction with his petition for appeal, it is unclear whether the Town possesses additional responsive records. The Town must clarify this matter. Order Accordingly, the Town is ordered to provide Attorney Ballard 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, ~~ Supervisor of Records cc: Steven Ballard, Esq.