Stephen C. Dewhurst v. Carver, Town of - Town Clerk (SPR 20191214)

The Common,vealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords July 1, 2019 SPR19/1214 Cara Dahill Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Dahill: I have received the petition of Stephen Dewhurst appealing the response of the Town of Carver to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dewhust requested a copy of: • Town Counsel Gregg Corbo's memo/opinion regarding "Use of Playground Property for Site of New Police Station" that was discussed during the 16 April open public session of the Board of Selectmen under the agenda item, "6:00PM Town Counsel - Discussion of memo related to Article 97 applicability to Playground;" and • Documentation of all instances of referral of any public records request for review by Town Counsel in the time frame of 15 December 2018 through 3 May 2019. In a June 18, 2019 email, Town Administrator Michael Milanoski informed Mr. Dewhurst that his requests, listed above, were withheld on the basis of the attorney-client privilege. As a result, Mr. Dewhurst petitioned the Supervisor of Records (Supervisor), and this appeal was opened pertaining to these two requests. In a June 24, 2019 telephone discussion with you, a Public Records Division staff attorney explained that the Town, through its Legal Counsel, Gregory J. Corbo of KP Law, P.C., must provide a detailed response or privilege log regarding the records that the Town withheld under the common law attorney-client privilege. The response or privilege log must comply with both the 3-part test in Suffolk and the Public Records Law. See Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444,450 fn.9 (2008); see also G. L. c. 66, § lOA(a). OneAshbmtonPlace, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Cara Dahill, Town Clerk SPR19/1214 Page 2 July 1,2019 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all goverlll1lental records are public records. G. L. c. 66, § !OA(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, § !O(b)(iv) (written response must "identify any records, categories of records or poliions 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) (c ustodian has the burden of establishing the applicability of an exemption). Co111111011 law attomey-clie11t privilege The Town claimed in its June 18, 2019 response that the records requested by Mr. 111 Dewhurst, Requests Numbered 1 and 4 of his original May 6 request, were withheld under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). The Comt affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Comt, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Comt requires govermnental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials:

Cara Dahill, Town Clerk SPR19/1214 Page 3 July 1, 2019 (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization ofEiec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the attomey-client privilege has the burden to show the privilege applies). 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 "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, § 1O A(a). The Town did not provide any privilege log or detailed response to account for withholding the records in their entirety under the attomey-client privilege. Consequently, the Town has not met its burden of providing the requisite detail in claiming the privilege. See Suffolk, 449 Mass. at 450 fn.9; see also G. L. c. 66, § 1O A(a). Accordingly, I find the Town must provide Mr. Dewhurst with a detailed response or privilege log. Co11clusio11 Accordingly, the Town is ordered to provide Mr. Dewhurst with a detailed response or privilege log to support its attorney-client privilege claim to withhold the requested records, in a manner consistent with this order, the 3-part test in Suffolk and G. L. c. 66, § lOA(a), the Public Records Laws 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: Stephen Dewhurst Gregory J. Corbo, Esq., KP Law, P.C.