Rob Fasulo v. Wilmington, Town of - Town Clerk (SPR 20190108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 1, 2019 SPR19/108 Jonathan M. Silverstein, Esq. KPLaw,P.C. 101 Arch Street, 12th Floor Boston, MA 02110 Dear Attorney Silverstein: 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." Previous appeals This request was the subject of previous appeals. See SPR18/1868 Determination of the Supervisor of Records (December 14, 2018); SPR18/2077 Determination of the Supervisor of ih Records (January 7, 2019). In my January 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 January 15, 2019. Mr. Fasulo appealed and SPR19/108 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, § 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, § 1O (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

Jonathan M. Silverstein, Esq. SPR19/108 Page2 February 1, 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 ih In my January determination I found that 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. I also found that the Town must confirm whether additional records exist, including records responsive to item number 5 in the Town's December 28, 2018 response. In the Town's January 15th response you indicate "KP Law, P .C. serves as the Wilmington's duly-appointed Town Counsel. Town Counsel is retained exclusively for the purpose of advising and representing the Town as a legal client. This firm does not serve the Town in any capacity other than as legal counsel. This clearly establishes that an attorney client relationship exists between the Town and KP Law and that all communications between Town officials and Town Counsel are for the purpose of seeking/rendering legal advice and representation." With respect to the records at issue, you note "[i]n this case, the records at issue are confidential, privileged communications between this firm and Town officials and staff. The communications relate to a pending application before the Zoning Board of Appeals for property that is currently the subject oflitigation against the Town. See Sawyer. et al. v. Wilmington Planning Board, et al., Land Court No. 18M1SC000636 (Lombardi, J.)." You further indicate that "[t]he Town has not waived any privilege relative to these confidential records. Therefore, the records constitute privileged information between Town officials and its attorneys, for the purpose of obtaining legal advice, for which the attorney-client privilege has not been waived." In his appeal petition Mr. Fasulo notes "I am continuing to maintain that at least most of these emails (Listed below as provided to me by the town) are not covered under attorney client privilege as the [T]own has still not met its burden of proving that the emails in part or entirety contains exempt information. As I pointed out in spr182077 some of the emails did not even involve an attorney." He also notes that "[a] review of the document produced by K.P. Law will show it is nothing more than a form letter that does not address any of the specific emails in whole or part. This letter in no way can be taken as proving that these documents are exempt from public records laws as nothing in the letter shows that the emails contained on that list were made in confidentiality and having the purpose of seeking legal advice. Therefore they did not meet their burden of proof." Subsequent to the opening of this appeal, the Town provided a supplemental response on January 31, 2019 in which you provided additional records, specifically an" ... email dated October 16, 2018 (item number 6 on the list provided to you in the Town's December 17, 2018 response) and a redacted email dated November 26, 2018 (item number 9 on the Town's

Jonathan M. Silverstein, Esq. SPR19/108 Page 3 February 1, 2019 December 17, 2018 response)." You further noted that the Town did not withhold a traffic study on the grounds of privilege. You also provided information regarding a separate request dated December 16, 2018. Please note this December 16th request is the subject of a separate appeal, SPRl 9/006, which this office is currently reviewing. 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, § JOA(a) G. L. c. 66, § 1O A(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(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 client privilege is being claimed." G. L. c. 66, § lOA(a).

Jonathan M. Silverstein, Esq. SPR19/108 Page 4 February 1, 2019 I find theTown must provide information about how each of the remaining emails at issue described in the December 1i h response 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, thereby falling under the privilege. Suffolk, 449 Mass. at 450 n.9. This office also encourages the Town and Mr. Fasulo to communicate further to in an effort to resolve this matter. See G. L. c 66, § IO(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 1 O(b )(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). 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, f/11.wiM(f- ~ Rebecca S. Murray Supervisor of Records cc: Rob Fasulo