Thomas J. Palleria v. Swampscott, Town of - Town Administrator (SPR 20191633)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records August 23, 2019 SPR19/1633 Sean Fitzgerald Town Administrator Town of Swampscott 22 Monument A venue Swampscott, MA O1 907 Dear Mr. Fitzgerald: I have received the petition of Thomas Palleria appealing the response of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 25, 2019 Mr. Palleria requested a "[s]igned copy of your agreement with Stantec for Rail Trail design and engineering services" (Item 1) and "[a]ll title research related to ownership of the land within the former national grid Corridor between the Swampscott Train Station and Marblehead Line" (Item 2). The Town responded on August 7, 2019 by providing certain records and denying access to others under the attorney-client privilege and Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). 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 po1iions 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). One Ashbu1ion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Sean Fitzgerald SPR19/1633 Page 2 August 23, 2019 Appeal ih In its August response the Town provided a link to a copy of the Agreement with Stantec for Rail Trail design and engineering services (Item 1). With respect to Mr. Palleria's request for records related to title research (Item 2), you indicate" ... the Town is, at thi~ time, withholding a confidential record with respect to the National Grid Corridor between the Swampscott Train Station and the Marblehead Line under the attorney-client privilege, work product doctrine as well as Exemption (d) of the Public Records Law, as outlined below." 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 (2007); 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). 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. Disclosing attorney-client communications to a third party generally undermines the privilege. See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). 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, § 1O A(a). ih In its August response the Town indicates, in pati, " ... where the Town or its agents receives information from legal counsel, in confidence, such discussions and any documents reflecting advice from its counsel, would be protected from disclosure under the attorney-client privilege." You assert "[i]n this instance, the record responsive to Item 2 was prepared by Town Counsel's title expe1i and provided confidentially to the Town's attorneys and Town officials, and, as such, the repmi is a confidential record between Town officials and Town attorneys for the purpose ofobtaininglegal advice." Although the Town's response addresses the factors described above in Suffolk, I find the Town must provide a description of the record at issue in Item 2 in accordance with G. L. c. 66, § lOA(a). Specifically, the description must include 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.

Sean Fitzgerald SPR19/1633 Page 3 August 23, 2019 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 repmis 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). With respect to its claim under Exemption (d), you indicate "[t]he Town is also withholding such record at this time pursuant to [E]xemption ( d) of the Public Records Law that relates to ongoing policies being developed by the Town regarding the Rail Trail Project." You contend that " ... the record responsive to Item 2 being withheld will assist in developing its · ongoing policy position with respect to the Rail Trail Project, which has not yet been finalized, and has determined, after careful review, that a premature release of such documents could taint the deliberative process." Although the Town explains that the record pertains to ongoing policies being developed by the Town regarding the Rail Trail project, I find it is unclear how the records at issue may be withheld in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify this issue. Conclusion Accordingly, the Town is ordered to provide Mr. Palleria 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.

Sean Fitzgerald SPR19/1633 Page 4 August 23, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Palleria Janelle Austin, Esq.