Eileen W. Mooney v. Great Barrington, Town of - Housing Authority (SPR 20191667)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2019 SPR19/1667 Madonna Meagher Assistant to the Executive Director Great Barrington Housing Authority 2 Bernard Gibbons Drive Great Barrington, MA 01230 Dear Ms. Meagher: I have received the petition of Eileen Mooney appealing the response of the Great Barrington Housing Authority (GBHA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Mooney requested "all correspondence you or your designated representative has had since May 15, 2019, with any attorney regarding any Housing Authority matter." GBHA responded by denying the request. Unsatisfied with GBHA's response, Ms. Mooney petitioned this office and appeal SPRl 9/1667 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 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. 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

Madonna Meagher SPR19/1667 Page 2 August 27, 2019 Current appeal 111 In its August 8 response GBHA claims attorney-client privilege, as well as Exemption (e) of the Public Records Law, to withhold all responsive records. G. L. c. 4, § 7(26)(e); G. L. c. 66A. . 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, 450 n.9 (2007); 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). GBHA explains that "[t]he records you are seeking are attorney-client privilege communication, whereby I communicated as Acting Chair of the Board with legal counsel seeking guidance and advice for the Housing Authority." GBHA also references Suffolk Constr. Co. v. Div.of Capital Asset Mgmt., 449 Mass, 450 n.9 (2007). Although GBHA provides information regarding the nature of these records, I find that in accordance with G. L. c. 66, § lOA(a), GBHA must provide "a detailed description of the record[ s] , 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" as required by G. L. c. 66, § lOA(a). Exemption (e) Exemption ( e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as paii of the files of the governmental unit

Madonna Meagher SPR19/1667 Page 3 August 27, 2019 G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes. created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e ). The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e ) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. GBHA contends that"[a ]ny existing notes you request are exempt from disclosure as attorney client privilege as well as under Exemption E, which exempts 'notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit." GBHA further asserts "some of the records you seek do not exist." Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find GBHA has not met its burden to withhold responsive records under the exemptions described above; in particular, it has not identified which specific records it is withholding, nor has it provided specific reasons for the applicability of these exemptions as required by G. L. c. 66, § 1O (b )(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Conclusion Accordingly, GBHA is ordered to provide Ms. Mooney with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Madonna Meagher SPR19/1667 Page4 August 27, 2019 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: Eileen Mooney