Gerard B. Matthews v. West Springfield, Town of (SPR 20191256)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 9, 2019 SPR19/1256 Kate B. O'Brien, Esq. Town Attorney Town of West Springfield Law Department 26 Central Street, Suite 32 West Springfield, MA 01089-2785 Dear Attorney O'Brien: I have received the petition of Gerard B. Matthews, Esq. appealing the response of the Town of West Springfield (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 24, 2019, Attorney Matthews originally requested: "Copies of all PILOT (Payment in Lieu of Taxes) Agreements by and between the Town of West Springfield and organizations/parties involved in said payment agreements; With paiiicular regard to all realty owned by the Theater Project, copies of all correspondence, legal opinions, requests, votes, approvals, inter-office communications and documentation pe1iaining to the tax status and liability by and between the Town of West Springfield and the Theater Project; and Documentation requested shall include, but not be limited to, all writings, notes, correspondence, computer files and email correspondence." On March 13, 2019 the Town provided Attorney Matthews with 87 pages ofrecords responsive to his January 24111 request. The Town also withheld certain pmiions and entire records under the common law attorney-client privilege. On March 20, 2019, Attorney Matthews inquired whether the Town could indicate which documents were being withheld as privileged and whether it possessed any "legal opinions, memos in support of the Town's position." You informed Attorney Matthews that the Town is withholding notes on case law under the attorney-client privilege and that Attorney Brighenti did not provide you with a written opinion relative to the Majestic property. On June 4, 2019, Attorney Matthews sent a letter to Mayor William C. Reichelt's 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

Kate R. O'Brien, Esq. SPR19/1256 Page 2 July 9, 2019 attention. The requests in this letter appear to be the same requested information as his original request. Specifically, Attorney Matthews seeks from the Mayor's Office: 1. Copies of all title certifications and/or opinions of title relating to the acquisition of any real estate by the [Town], by either purchase or eminent domain from January 1, 2017 to date; 2. Documents related to the tax status of the Majestic Theater, including, but not limited to, correspondence with any representative of the Majestic Theater, including that of its counsel, Simon Brighenti, as well as opinions, and or documents related thereto; and 3. Documentation requested shall include, but not be limited to, all writings, notes, memoranda, correspondence, including emails and text messages, and computer files. In your June 18111 response, you indicate the Town withheld records regarding Request Number 1 pursuant to the attorney-client privilege and attorney work product under Suffolk. See Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). Regarding Attorney Matthews' Request Number 2, the Town asserts, "[a]ll responsive documents were provided to you in response to your previous request for information related to the Theater Project (aka Majestic Theater) dated January 24, 2019. The Town refers you to its responses to that request for information that is not otherwise exempt." As a result of the Town's June 18th response, Attorney Matthews' petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his June 20th petition, Attorney Matthews indicates that he is appealing the Town's denial of access to opinions oftitle or title reports regarding land to be purchased by the Town pursuant to the attorney-client privilege. Attorney Matthews indicates that his June 4th request was also seeking communications involving the Mayor's office and any other parties regarding a decision to grant the Majestic Theater Project, Inc. an exempt status prior to entering into a PILOT Agreement in lieu of taxes. It is unclear from the Town's responses whether it possesses such communications. I find that the Town must provide Attorney Matthews a response to clarify this request. No records In the July 1st response, you note, "[a ]fter an in-person meeting, a draft of the PILOT agreement was presented by Attorney Brighenti. That draft and the accompanying letter have already been produced to Attorney Matthews ... [a]dditionally, several emails between myself (a representative of the Mayor's office) and Attorney Brighenti were also provided .. .I am not aware of any correspondence from Attorney Brighenti that is being withheld by the Town." In addition, you explained that no additional responsive records were created since the Town's March response. Attorney Matthews is advised, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of

Kate R. O'Brien, Esq. SPR19/1256 Page 3 July 9, 2019 the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). 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) (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 In both its June 18, 2019 response and its July 1, 2019 response, the Town has claimed that the real property title certifications and/or opinions relating to any real estate acquisitions by the Town in purchasing or in a taking under eminent domain from January 1, 2017 to the present are exempt 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 Comi (Comi). 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 Comi 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

Kate R. O'Brien, Esq. SPR19/1256 Page 4 July 9, 2019 Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, indicated that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental 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: 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 of Elec. 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 attorney-client privilege has the burden to show the privilege applies). Your July 1st response asse1is: "[t]he Town engages private attorneys to provide it with legal opinions as to the status of title for prope1iies that it seeks to acquire. The private attorneys research the title of the prope1iies and provide to the Town a written legal opinion as to the status of the title, based on their independent research. Included in the title opinions are legal advice as to steps that must be taken to clear or perfect the title and, additionally, any filings that are necessary at the time of the real estate closing. The Town engages the private attorneys to provide an opinion as to the title and legal advice as to any defects to the title." The Town's responses did not indicate whether the attorney-client privileged documents were kept in confidence or whether the privilege has not been waived. See Suffolk, 449 Mass. 450, fn 9. In assessing whether a records custodian has met its burden in claiming and withholding a record under the 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, § IOA(a). I find that the Town must clarify whether the privilege was waived and provide an index or privilege log to Attorney Matthews to supp01i its attorney-client privilege claim to withhold the title ce1iifications and/or legal opinions provided to the Town by private attorneys. Order Accordingly, the Town is ordered to provide Attorney Matthews with a response, in a manner consistent with this order, the Public Records Law and its Regulations within 10

Kate R. O'Brien, Esq. SPR19/1256 Page 5 July 9, 2019 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: Gerard B. Matthews, Esq.