Christopher R. Agostino v. Norfolk, Town of - Town Clerk (SPR 20191290)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records July 10, 2019 SPR19/1290 Anthony Turi Assistant Town Clerk - Records Access Officer Town of Norfolk 1 Liberty Lane Norfolk, MA 020156 Dear Mr. Turi: I have received the petition of Christopher R. Agostino, Esq. of Ruberto, Israel, & Weiner, P.C. appealing the response of the Town of Norfolk (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Agostino requested communications between identified individuals from April 17, 2019 to the present relating to a certain prope1iy. The Town provided responsive emails on June 20, 2019; however, two email strings were withheld under the common law attorney-client privilege. As a result of the Town's withholding of the two email strings under the attorney-client privilege, on June 26, 2019, Attorney Agostino petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fmiher, Attorney Agostino contends that the Town may not have culled all the emails in its search because it only used the search term, "144 Seekonk." Attorney Agostino requests that the Town also produce records by using additional search terms. I find it is unclear whether the Town performed an exhaustive search for the requested records. The Public Records Law 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) (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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Anthony Turi SPR19/1290 Page 2 July 10, 2019 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 its June 20, 2019 response, the Town indicated it withheld two email chains under the common law attorney-client privilege, as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 111 Attorney Agostino asserts in his June 26 petition to the Supervisor that the Town has waived the attorney-client privilege by communicating in the presence of a third party not represented by the attorney, and/or that the third party was copied on the communications. 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 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 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).

Anthony Turi SPR19/1290 Page 3 July 10, 2019 111 The Town's June 20 response did not indicate whether 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; whether the communications were made in confidence; and that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. 450, fn 9. I find the Town has not established the attorney-client privilege. Specifically, it is uncertain who Attorney Hill's clients are for purposes of the subject matter in these emails and whether the communications were made in confidence. ' Fmihermore, in assessing whether a records custodian has established the attorney-client privilege, the Supervisor "shall require, as pati 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). In its June response, the Town provided the names of the author and recipients, and the substance or general subject matter of the emails. However, the Public Records Law also requires that in claiming the attorney-client privilege to withhold communications, the Town must provide the dates of the communications and the grounds upon which the attorney-client privilege is being claimed. Id. I find that the Town did not meet its burden of supporting its attorney-client privilege claim to withhold the two email chains, or in providing a detailed response or privilege log. See Suffolk, 449 Mass. 450, fn 9; G. L. c. 66, § lOA(a). Order Accordingly, the Town is ordered to provide Attorney Agostino with 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, ~~ Rebecca S. Murray Supervisor of Records cc: Christopher R. Agostino