Gerard F. Russell v. Charlton, Town of - Town Administrator (SPR 20181872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 17 , 2018 SPRlS/1872 Robin L. Craver Town Administrator Town of Charlton 37 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, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on October 11, 2018, Mr. Russell requested communication regarding a certain proposed natural gas connection. The Town provided an initial response on October 14, 2018, denying access to a responsive record pursuant to the common law attorney-client privilege given that "it is a confidential draft prepared by [KP Law] at [the Town's] request." Previous appeal - SPRJ 8/1540 Unsatisfied with the Town's October 14tl1response, Mr. Russell petitioned this office and an appeal, SPR18/1540, was opened. See SPR18/1540 Determination of the Supervisor of Records (Supervisor) (November 1, 2018). In my November 1st determination, I found the Town did not meet its burden of specificity in withholding the responsive document; therefore, I ordered the Town to provide Mr. Russell with a supplemental response to support its claim that the document may be withheld. 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, § IOA(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

Ro bin Craver SPR18/1872 Page 2 December 17, 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). The Town's November 14, 2018 supplemental response In its November 14th supplemental response, the Town asserts, "[t]he record at issue is a confidential, privileged document, a draft Request for Expressions of Interest ("RFEI") prepared by the Town's attorneys in October 2018 at the Town's request seeking legal advice on a pending legal and policy matter." 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 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. In their November 14th response regarding the RFEI, the Town asserts "[a]fter careful review by the Town following review of the November 1, 2018 determination, please be advised that the record constitutes privileged information between Town officials and its attorneys involved in this matter, for the purpose of obtaining legal advice, for which the attorney-client privilege has not been waived, and therefore, that such record may be withheld pursuant to the attorney-client privilege." 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

Robin Craver SPR18/1872 Page 3 December 1 7, 2018 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). After review of both the October and November responses of the Town, I find that the Town did not provide all of the information required by G. L. c. 66, § lOA(a). Under the Public Records Law, the Town must provide a detailed description of the attorney-client privileged record, including the names of the authors and recipients of the advice; the date of the communication; the substance of the record; and the grounds upon which the attorney-client privilege is being claimed. I find that the Town has met its burden of specificity in explaining that the purpose of the record was to impart legal advice to a client on a matter in which the client sought legal advice from the attorney or attorneys pertaining to a particular matter. However, the Town did not provide the other detailed information pertaining to the withheld record which is required by the Public Records Law in claiming the attorney-client privilege to withhold a record. Conclusion Accordingly, the Town is ordered to provide Mr. Russell with a supplemental response regarding its attorney-client privilege claim to withhold the record in a manner consistent with this order and G. L. c. 66, § 1O A 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, Rebecca S. Murray Supervisor of Records cc: Janelle M. Austin, Esq., KP Law, P.C. Gerald Russell