Rob Fasulo v. Wilmington, Town of - Town Clerk (SPR 20182077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 7, 2019 SPR18/2077 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, § IOA; 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." Previous appeal This request was the subject of a previous appeal. See SPRI 8/1868 Determination of the Supervisor of Records (December 14, 2018). In my December 14th determination I ordered the Town to provide Mr. Fasulo a response in a manner consistent with the order, the Public Records Law, and its Regulations. The Town responded on December 17, 2018. Mr. Fasulo appealed and SPRI 8/2077 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, § 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). 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 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 SPR18/2077 Page2 January 7, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In my December 14th determination I found that in accordance with G. L. c. 66, § IOA(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, § IOA(a). I also found that the Town must clarify which responsive records it possesses and also confirm whether additional records exist. See G. L. c. 66, § 10(a )(ii), (b )(ii). ih In its December 1 response the Town provided a list of 10 emails" ... that were sent between the Town Manager, Recording Secretary for the ZBA and Town Counsel." Mr. Fasulo objects to the withholding of certain emails, and specifically references the emails identified as 2, 3, 6, and 9. In an email dated December 27, 2018 Mr. Fasulo indicates" ... I received a list of only 10 emails the oldest dated July 23 2018 (some 8 months after the plans were submitted), that the town claimed are exempt under attorney client privilege. I believe there are far more documents and emails than provided in this list that I/we are being told about ...." On December 27th you indicated "I will see ifthere are any communications between the Planning Board and the Zoning Board of Appe[a]ls directed to the Building Inspector's office or zoning board." On December 28t\ the Town provided the following information: I have looked at the final plans for the project at 362 Middlesex. There are construction comments. There are no handwritten notes on them. You have two options to view the plans: 1. You may come into the office and look over all the plans 2. I will copy all of the plans at a cost of$3.00 per plan. You will still need to come to the office to pick up the plans,. They are too large form[ e] to send electronically. 3. There is a 100 page traffic study you may review or I can copy for .05 per page. 4. The Stormwater Management plans may be viewed or copied at $3.00 per page. 5. There is NO correspondence between the Building Inspector and the Zoning Board of Appeals. 6. Every single piece of paper generated for the 362 Middlesex project is in the ZBA file that is on the town website. 7. I will send you all the correspondence from the Planning Board electronically. Even though I know I have previously sent this to you. 8. I am emailing town counsel on the attorney client emails. There will be a couple more emails with attachments. This is all the correspondence I have.

Sharon A. George SPR18/2077 Page 3 January 7, 2019 Mr. Fasulo responded on the same day by noting "Li]ust for clarification with regards to your #5. Would that include any communications that may have been prepared by the Building secretary on behalf of the building inspector? Sent to any other board or commission other than the zba?" 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, § 1 OA(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 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(a). 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 client privilege is being claimed." G. L. c. 66, § lOA(a).

Sharon A. George SPR18/2077 Page 4 January 7, 2019 Although the Town provided the dates, authors, and recipients of emails, the Town must provide information regarding the existence of an attorney-client relationship and clarify how each communication was 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. Suffolk, 449 Mass. at 450 n.9. In particular, the Town must provide this additional information regarding the emails identified as ih 2, 3, 6, and 9 in the December 1 response described above. The Town may elect to provide this office with unredacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide this office a response with further information as described above, and as contemplated in G. L. c. 66, § lOA(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 confirm whether additional records exist, including records responsive to item number 5 in the December 28th response described above. 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, Rebecca S. Murray Supervisor of Records cc: Rob Fasulo