Heather Hunt v. Barnstable, Town of - Town Attorney (SPR 20191557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor of Records August 19, 2019 SPR19/1557 Ruth J. Weil, Esq. Town Attorney Town of Barnstable Office of the Town Attorney 367 Main Street Hyannis, MA 02601-4 724 Dear Attorney Weil: I have received the petition of Heather Hunt appealing the response of the Town of Barnstable (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on May 31, 2019, Ms. Hunt requested: "Any and all correspondence commencing May 31, 2018 through May 31, 2019, including but not limited to electronic mail and test messages that refer to, or include information regarding 'short-term rent' and/or 'Home/Away' by, to, or between employees and/or representatives of the [Town] (i.e., consultants or outside service providers; not elected officials and not volunteers appointed to [T]own Boards of Commissions). This request includes but is not limited to any correspondence between employees or representatives (not elected officials and not volunteers appointed to [T]own Boards or Commissioners) of the [Town] and [Town] property owners." Ms. Hunt states that she may wish to inspect the records in the Town's offices rather than receiving paper copies. She also asks that the Town waive the applicable fees. The Town's July 24, 2019 response After Ms. Hunt paid the fee described in a June 17, 2019 fee estimate, the Town provided her with responsive records and withheld certain records. It does not appear that the fee is at issue in this appeal. The Town's July 24111 response states, "[a]s the attached spreadsheet reflects, we have identified several documents that are exempt from disclosure under either G. L. c. 4, § 7(26)(d ) ( deliberative process exemption) or are confidential communications protected under the 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

Ruth J. Weil, Esq. SPR19/1557 Page 2 August 19, 2019 doctrine of attorney-client privilege (including attorney work product) or both." Under its Exemption ( d) claim, the Town asserts, "[t]he documents listed on the attached privilege log represent interagency and interagency advisory opinions, recommendations and deliberations and discussions relating to the issues of short term rentals both generically and in response to specific matters. Wherever possible, the Town has provided redacted documents, and those documents are so indicated." The Town also withheld certain documents under the common law attorney client privilege and the work product doctrine. As a result of the Town's July 24th response withholding certain of the records under Exemption ( d), and the common law attorney-client privilege, Ms. Hunt petitioned and this appeal was opened. In her petition, Ms. Hunt asserts that the Town did not explain why the deliberative process exemption applies to each communication it withheld in whole or in part; nor did the Town explain or identify the role of the persons in each of the emails withheld under the attorney-client privilege and whether there is an attorney involved in each of the emails. 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, § 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 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). The Town's August 13, 2019 response_ In the Town's August 13th response, the Town conducted another review of the records, and decided to release nine previously withheld documents and eight previously redacted documents to Ms. Hunt under separate cover. The Town also revised its privilege log, indicating the remaining documents are withheld under the attorney-client privilege and Exemption ( d). Common law attorney-client privilege The Town's August 13th revised privilege log reveals that the Town is withholding fifteen emails under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008).

Ruth J. Weil, Esq. SPRI9/1557 Page 3 August 19, 2019 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 Blee. Co., 414 Mass. 609, 614-615 (1993). The Court 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, admonished 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: (!) 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, n. 9, citing Matter of the Reorganization of Blee. 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). 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). In its August 131 h response, the Town asserts, "[c]onsistent with the SJC's guidance in Suffolk, as in-house counsel for the [Town], our office has encouraged [T]own clients and client agencies to fully disclose relevant facts to our office with the promise of full confidentiality when seeking legal advice. It is with this bedrock understanding that [T]own employees provide this information with the understanding that the information is and will remain confidential." You explained that applying the 3-part test in Suffolk, the communications were received from a client during the client's search for legal advice from the attorney in his or her capacity as such; the privilege log outlines the circumstances in which the advice was given; the communications were made in confidence; and that the privilege was not waived. The Town's

Ruth J. Weil, Esq. SPRl 9/1557 Page 4 August 19, 2019 privilege log lists the date; the senders and recipients of the communications; and the reason or general subject matter of each email withheld under the common law attorney-client privilege. While the Town identified the senders and recipients by name, it is unclear whether the other parties to the communications can be considered "clients." The privilege log did not describe the job titles of the individuals who either sought or received legal advice from you. Consequently, in its response, the Town has not met its burden of providing specificity to support the Town's claim that thes.e individuals are clients for purposes of the common law attorney-client privilege. See Suffolk, 449 Mass. at 450; see also G. L. c. 66, § 1O A(a). Accordingly, I find the Town must provide Ms. Hunt with a further response including information regarding the attorney or client status of the recipients and senders of the emails listed on the privilege log. Work product The Town's July 24th and August 13th responses, as well as its privilege log, indicate that the Town is also withholding these emails as attorney work product. It should be noted that the Supreme Judicial Court (SJC) opined on this issue in DaRosa v. New Bedford, 471 Mass. 446 (2015). Exemption (d) Exemption (d ) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). 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

Ruth J. Weil, Esq. SPR19/1557 Page 5 August 19, 2019 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. I find that the Town has not established how the withheld documents constitute work product that may be withheld as contemplated in DaRosa. In particular, it is unclear how the responsive records were prepared in anticipation of litigation or for trial. The Town asserts in its August 13th response, "[t]he documents listed on the attached revised privilege log represent intra-agency advisory opinions, recommendations, deliberations and discussions relating to policy and legal issues regarding shott term rentals." However, the Town does not explain how disclosure would taint the deliberative process. As a result, the Town did not establish how the withheld and/or redacted portions of the provided records are exempt from disclosure under Exemption ( d). The Town is also reminded that "reasonably completed factual studies or repo1is on which the development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, § 7(26)(d). Co11cl11sio11 Accordingly, the Town is ordered to provide Ms. Hunt a response in a manner consistent with this order, the Public Records Law and its Regulations within IO 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, ~ " " ~ Supervisor of Records cc: Heather Hunt