Richard C. Pedone v. Hingham, Town of - (SPR 20190738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 23, 2019 SPR19/0738 Eileen McCracken Town of Hingham Hingham Town Hall 210 Central Street Hingham, MA 02043 Dear Ms. McCracken: I have received the petition of Richard C. Pedone, Esq. on behalf of his client, Aquarion Water Company, appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 7, 2019, Attorney Pedone requested various categories ofrecords related to Aquarion Water Company. The Town provided an initial response to Attorney Pedone's request in a letter dated January 23, 2019. The Town has since provided numerous responses to the request which have included production of responsive records, denial of access to responsive records pursuant to the common law attorney-client privilege and exemptions under the Public Records Law, and an indication that it continues to search for responsive records. 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, § lO(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. 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

Eileen McCracken SPR19/0738 Page 2 April 23, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In his petition for appeal Attorney Pedone indicates that he is appealing "the Town's denial by delay" and requests the Town be ordered to "provide all responses to Aquarion's public records request by the earlier of ( a) on week of the entry of the order; or (b) April 19th (1 business day before Town Meeting)." Attorney Pedone additionally requests that this office order the Town to "provide (1) a list of any records which it withheld based on an alleged exemption under MGL Chapter 4, Section 7(26) with specific citations to the exemption(s) upon which the Town relies for each record; (2) a privilege log to the extent that the Town is withholding any documents based on attorney/client privilege or the work product doctrine." While this appeal was pending, the Town provided a response indicating that "[t]he difficulty in this matter is that Aquarion's requests are very broad. The requests taken as a whole request virtually any document related to Aquarion over the last five years." The Town asserts that "Aquarion should be directed to provide a more reasonable description of the requested records under 950 CMR 32.06(1 )(b) " and that "it would be more consistent with the public records law that Aquarion more particularly define its request, including specific searches, so that the desired records can be produced." Response time for providing records; additional responsive records It is my understanding the Town continues to search for any additional records not provided that may be responsive to the request. However, it is unclear the process by which the Town is searching for these records and when this search may be completed. The Town must clarify these matters and provide a response to Attorney Pedone that provides information regarding whether the Town possesses additional responsive records. See G. L. c. 66, § lO(b)(iv) (a written response shall "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 ... "); Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). Given the expansiveness of the request, this office encourages both parties to communicate further, if needed, to enable the Town to provide responsive records. See G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). Please be advised that it is valid for the custodian of records to 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 or municipality to produce records sought more efficiently and affordably." See G. L. c. 66, § 1O (b )(vii). Accordingly, the Town may ask Attorney Pedone for a more refined request in order for the Town to provide the responsive records in a more efficient manner. The

Eileen McCracken SPR19/0738 Page 3 April 23, 2019 Town must use its knowledge of the records to facilitate the provision of any additional responsive records. See 950 C.M.R. 32.04(5). 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), (b)(ii). Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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). The Town has not established the existence of an attorney-client relationship under these circumstances. The Town is advised that in .order to meet its burden of specificity in applying the common law attorney-client privilege to withhold records, it 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." G. L. c. 66, § lOA(a). Additionally, the Town did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. Further, Town must identify the specific records that it believes fall into the attorney-client privilege. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460. Burden ofs pecificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Eileen McCracken SPR19/0738 Page 4 April 23, 2019 The Town must identify the records, categories of records or portions ofrecords in its possession that are responsive to Attorney Pedone's request and those which it intends to withhold. See G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Although the Town indicates that certain records are exempt from disclosure, it is unclear which exemptions under the Public Records Law the Town is claiming to withhold such records or how the exemptions apply to withhold the requested records. The Town must provide a detailed response to specifically explain how the exemptions apply to withhold the requested records in compliance with the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Attorney Pedone with a response to the request, provided 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: Richard Pedone, Esq.