Rob Fasulo v. Wilmington, Town of - Town Clerk (SPR 20181868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 14, 2018 SPRlS/1868 Sharon A. George Town Clerk Town of Wilmington 121 Glen Road Wilmington, MA 01887 Dear Ms. George: I have received the petition of Rob Fasulo appealing the response of the Town of Wilmington (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fasulo requested" ... any correspondence regarding the 362 Middlesex project originating from the Building/zoning department. I would include in this request any official comments and recom[m]endations on both the preliminary plan as well as the definitive plan." Mr. Fasulo received an unsatisfactory response and appealed to this office. 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, § IO(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. Appeal The Town initially responded on November 29, 2018 by seeking clarification about the type ofrecords sought. Subsequent to Mr. Fasulo's clarification, the Town responded on November 30th by indicating" ... all correspondence for 362 Middlesex is on the Town website 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

Sharon A. George SPR18/1868 Page2 December 14, 2018 under Board of Appeals. Please go to www.wilmingtonma.gov click on Boards/Commissions and click on Board of Appeals. Peruse all the information available online." The Town provided additional responses in light of Mr. Fasulo's appeal. On December 3, 2018 you indicated "[a]ny communications between our Town Counsel and the Building Inspector/Zoning Board is all confidential under attorney client privilege. I ain going through the file I have on 362 Middlesex Ave and make sure there is nothing new in there. Also, you are free to come in anytime and review the folder." That same day the Town provided Mr. Fasulo minutes of the November 20, 2018 Board of Appeals meeting and noted that" ... no documents were submitted that evening." You also explain that "I spent all morning comparing the file the Building Inspector's/Zoning has in their office and the file on our website. Other than confidential correspondence there is nothing else I have to give you. I have an enormous Planning Board file if there is information you need from that file." The Town also provided a response to this office on December 7, 2018 summarizing the responses provide~ so far. On December 5th Mr. Fasulo indicated to this office that" ... I only received the minutes referenced in the last email. I have received nothing that I have asked for." 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, 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. G. L. c. 66, § IOA(a) G. L. c. 66, § lOA(a) 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

Sharon A. George SPR18/1868 Page 3 December 14, 2018 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(aj. 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 dientprivilege is being claimed." G. L. c. 66, § lOA(a). Although the Town indicates that "[a]ny communications between our T()W!l Counsel and the Building Inspector/Zon.ing Board is all confidential under attorney client privilege," I find that in accordance with G. L. c. 66, § 1O A( a), the Town must provide "a detailed description of the record[s], 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" as required by G. L. c. 66, § 1O A(a). Existence ofr esponsive 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). I find the Town must clarify which responsive records it possesses and also confirm whether additional records exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). Conclusion Accordingly, the Town is ordered to provide Mr. Fasulo a response in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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, ~cl-- f&Wffi Rebecca S. Murray Supervisor of Records cc: Rob Fasulo