Duane Galbi v. Wayland Zoning Board of Appeals (SPR 20191441)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 2, 2019 SPR19/1441 Louise L. E. Miller Town Administrator Wayland Zoning Board of Appeals 41 Cochituate Road Wayland, MA 01778 Dear Ms. Miller: I have received the petition of Duane Gal bi appealing the response of the Wayland Zoning Board of Appeals (Board) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 2, 2019, Mr. Galbi requested" ... all correspondence sent to the consultant hired by the town to review the Verizon application for a cell tower at 4 · meadow view." Mr. Galbi mentioned that "[t]h[is] would include any cOrrespondence sent by any board member, any member, any member of the town administration, or by the Wayland town counsel. This request also includes any records of phone conversations with the previous mentioned expert and any board member, any member of the town administration, or by the Wayland town counsel." The Town provided a response on July 10, 2019, denying access to the responsive records pursuant to the common law attorney-client privilege and the work product doctrine. Unsatisfied with the Board's response, Mr. Galbi petitioned this office and this appeal, SPR19/1441, was opened as a result. 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 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

Louise L. E. Miller SPR19/1441 Page 2 August 2, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided, G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board's July 101 response " In its July 10, 2019 response, the Board asserts that" ... all correspondence and conversations involving town counsel are subject to attorney-client privilege and to attorney work product doctrine and are not available for review." The Board further indicates that "[a]ll other material is available via the building Department. While no specific file currently exists with your specific request, [Mr. Galbi] [is] welcome to review the information on file at the Building Depaiiment." Common law attorney-client privilege 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & 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. 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, 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). Based on the Board's response, I find the Board has not established the existence of an attorney-client relationship under these circumstances. The Board did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. The Board must first apply the three-step test in Suffolk to prove that the records fall under the protection of the attorney-client privilege and cannot be disclosed to the public.

Louise L. E. Miller SPRl 9/1441 Page 3 August 2, 2019 In addition, as noted above, the Board must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Consequently, I find the Board did not meet its burden of specificity in claiming the attorney-client privilege to withhold records from disclosure under the requirements of the three part test in Suffolk and the Public Records Law under G. L. c. 66, § lOA(a). Further, with respect to the Board's claim under the work product doctrine, I find the Board has not established how the withheld correspondence and conversations constitute attorney work product that may be withheld from disclosure. Conclusion Accordingly, the Board is ordered to provide Mr. Galbi with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Duane Galbi