Beth Treffeisen v. Bourne, Town of (SPR 20191128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

June 13, 2019 SPR19/1128

Barry H. Johnson

Town Clerk

Town of Bourne

24 Perry Avenue Buzzards Bay, MA 02532

Dear Mr. Johnson:

I have received the petition of Beth Treffeisen of the Cape Cod Times appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Treffeisen requested a copy of “the audit report done on the Buzzards Bay Park by Nancy White, the playground safety inspector.”

Prior appeals

The responsive record was the subject of prior appeals. See SPR19/221; SPR19/511 and SPR19/975 Determinations of the Supervisor of Records (Supervisor) (February 14, 2019; March 19, 2019 and June 3, 2019). On May 14, 2019, the Town provided Ms. Treffeisen with the responsive report, but withheld certain information from the report. Ms. Treffeisen appealed and SPR19/975 was opened as a result. In her May 17" appeal Ms. Treffeisen contends that she did not receive the full report and notes that she has not received a three-page summary with the

certified playground specialist’s opinion and explanation of the report, certain pictures, and an appendix with definitions.

In my June 3“ determination, I found that the Town did not provide Ms. Treffeisen with a response with the report to account for the withheld information. Further, I found the Town did not meet its burden of specificity to show how an exemption applies to withhold portions of the responsive records; specifically, the Town does not describe which portions of the report have been redacted or withheld, nor does it explain how an exemption to the Public Records Law or privilege applies to these portions. Consequently, I ordered the Town to provide Ms. Treffeisen with a response provided in a manner consistent with the order, the Public Records Law, and its Regulations.

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

Barry H. Johnson SPR19/1128 Page 2 June 13, 2019

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, § 10A(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, § 10(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).

Current appeal

In her current appeal, Ms. Treffeisen indicates, “[t]he response does not describe which portion of the report was redacted or withheld nor does it describe how a privilege applies to those portions.”

On June 4, 2019, you emailed a Public Records Division staff attorney, stating, “this email is to respectfully inform you that I have complied with this request in that the Board of Selectmen have voted to only waive the exemption re ‘attorney client privilege’ and ‘work product’ in that they released a copy of the redacted Buzzards Bay Playground Audit Report; a copy of the document was provided by me to Ms. Treffeisen and Atty. Sullivan; and absent further action by the Board of Selectmen I am unable to release any other documents.”

Currently, the Town has claimed that portions of the report were redacted and/or records withheld under both the attorney-client privilege and the work product doctrine. However, the Town has not detailed what portions of the report were withheld under these privileges, and whether any further records exist that the Town is withholding under these privileges.

Attorney-client privilege and work product

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.

Barry H. Johnson SPR19/1128 Page 3 June 13, 2019

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). 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.

It should be noted that the Supreme Judicial Court (SJC) opined on the work product doctrine in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id.

With respect to the attorney-client privilege claim, I find the Town has not met its burden of demonstrating that the withheld records or portions of the records may be withheld from disclosure under the attorney-client privilege because the Town has neither provided an explanation regarding whether the privilege has been waived, nor has it provided a detailed index in accordance with G. L. c. 66, § 10A(a). 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(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, § 10A(a).

Burden of specificity

Due to the issues raised in the current and prior appeal regarding the content of the record, it is unclear how an exemption can apply to the withheld portions of records. See G. L. c. 66, § 10(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...”).

Order

Accordingly, the Town is ordered to provide Ms. Treffeisen with a response 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. Failure to comply with this determination may result in referral to the Office of the Attorney General for enforcement.

Barry H. Johnson SPR19/1128 Page 4 June 13, 2019

Sincerely,

Llecor

Rebecca S. Murray Supervisor of Records

ce: Beth Treffeisen, Cape Cod Times Robert S. Troy, Esq.