Gerard F. Russell v. Charlton, Town of - Town Administrator (SPR 20182131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 14, 2019 SPRlS/2131 Robin L. Craver Town Administrator Town of Charlton 37 Main Street Charlton, MA O1 507 Dear Ms. Craver: I have received the petition of Gerard F. 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 11, 2018, Mr. Russell requested any communication(s) regarding a certain proposed natural gas connection. Previous Appeals - SPRl 8/1540 and SPRl 8/1872 The responsive record was the subject of two previous appeals. See SPR18/1540 and SPR18/1872 Determinations of the Supervisor of Records (Surervisor) (November 1, 2018 and December 17, 2018). Unsatisfied with the Town's October 14t1 and November 14th responses, Mr. Russell petitioned this office and SPRl 8/1540 and SPRl 8/1872 were opened. The Town's November 14th supplemental response 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." In my December 17th determination, I found the Town did not meet its burden of specificity in claiming the common law attorney-client privilege under the requirements in the Public Records Law. See G. L. c. 66, § lOA(a). Therefore, I ordered the Town to provide a supplemental response that supports the attorney-client privilege under G. L. c. 66, § lOA(a). On December 21, 2018, the Town's Legal Counsel, Janelle M. Austin, Esq. of KP Law, P.C. provided a supplemental response regarding the Town's attorney-client privilege claim under G. L. c. 66, § lOA(a). 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 SPR18/2131 Page2 January 14, 2019 As a result of the Town's December 21st response, Mr. Russell petitioned the Supervisor, and the current appeal was opened. In his December 28th petition, Mr. Russell again requests that this office conduct an in camera inspection of the document that is withheld under the attorney client privilege. As a result, this office opened the current appeal, SPRl 8/2131. 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, § lO(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). Common law attorney-client privilege A record 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 [Supervisor's] 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

Robin L. Craver SPR18/2131 Page 3 January 14, 2019 attorney-client privilege has not been waived, and therefore, that such record may be withheld pursuant to the attorney-client privilege." After review of the November 14th response of the Town, and given that the Town met all three parts required by the Suffolk test, I found that the Town had established the existence of the attorney-client privilege. However, the November response did not meet the Town's burden of specificity under the Public Records required by G. L. c. 66, § IOA(a). Pursuant to the Public Records Law, once a matter is appealed to the Supervisor on the grounds of attorney-client privilege, pursuant to G. L. c. 66, § 1O A(a), the Supervisor "shall not inspect the record but shall require the custodian to provide: a detailed description of the attorney-client privileged record, including the names of the author(s) 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." G. L. c. 66, § IOA(a). In its December 21st response, the Town indicates that the record at issue is: an October 11, 2018 draft 'RFEI' opinion on a pending legal and policy matter concerning a retail natural gas distribution project, prepared by the Town's Attorney Matthew Feher of KP Law, P.C., imparting advice to Robin Craver, the Town Administrator for the purpose of obtaining legal advice, with a copy to additional Town Attorneys, Jonathan Silverstein and Christopher Pollart of KP Law, P. C., under the protection of attorney-client privilege that has not been waived. The Town further explains, as it had in its November 14th supplemental response, "the Town has not waived any privilege relative to this confidential record. After careful review by the Town following review of the Supervisor's prior determinations, 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, such record may be withheld pursuant to the attorney-client privilege." Conclusion Accordingly, based on the Town's November 14th and December 21st responses, I find that the Town has now met its burden of specificity under both the 3-part test in Suffolk and G. L. c. 66, § 1O A(a) in withholding a record under the attorney-client privilege. I will consider this administrative appeal closed. If Mr. Russell is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Robin L. Craver SPR18/213 l Page 4 January 14, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Gerard F. Russell Janelle M. Austin, Esq., KP Law, P.C.