Stephen C. Dewhurst v. Carver, Town of - Town Clerk (SPR 20191787)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 17, 2019 SPR19/1787 Elaine Wes ton Assistant Town Administrator Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Weston: I have received the petition of Stephen C. Dewhurst appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dewhurst requested a copy of: • Town Counsel Gregg Corbo's memo/opinion regarding "Use of Playground Property for Site of New Police Station" that was discussed during the 16 April open. public session of the Board of Selectmen under the agenda item, "6:00PM Town Counsel - Discussion of memo related to Article 97 applicability to Playground;" and • Documentation of all instances of refetral of any public records request for review by Town Counsel in the time frame of 15 December 2018 through 3 May 2019. Prior appeal The responsive records were the subject of a prior appeal. See SPR19/1214 Detennination of the Supervisor of Records (Supervisor) (July 1, 2019). In a June 18, 2019 email, Town Administrator Michael Milanoski informed Mr. Dewhurst that his requests, listed above, were withheld on the basis of the attorney-client privilege. As a result, Mr. Dewhurst petitioned the Supervisor of Records (Supervisor), and this appeal was opened pertaining to these two requests. In a June 24, 2019 telephone discussion with the Town Clerk, Cara Dahill, a Senior Attorney in the Public Records Division explained that the Town must provide a detailed response or privilege log regarding the records that the Town withheld under the common law attorney-client privilege. The response or privilege log must comply with both the 3-part test in 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

Elaine Weston SPR19/l 787 Page2 September 17, 2019 Suffolk and the Public Records Law. See Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444, 450 fn.9 (2008); see also G. L. c. 66, § lOA(a). The Town's August 22, 2019 email response The Town's August 2211d response indicates that some records pertaining to various contract/collective bargaining proposals are withheld under Exemption (d); some records have been withheld under Exemption ( c) as personnel information; and the remainder of the documents have been withheld under the attorney-client privilege. In my July 1st determination, I ordered the Town to provide a privilege log to support its claim to withhold certain of the records under the common law attorney-client privilege. Subsequently, the Town asserts that records have also been withheld under the first clause of Exemption (c) as personnel info1111ation, and other records under Exemption (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 fonn 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 de111onstrate 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 portions of records that the agency or municipality intends to withhold, and provide the specific i·easons 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). Common law attorney-client privilege The Town claimed in its June 18, 2019 response that Requests Numbered 1 and 4 of Mr. Dewnurst's original May 6, 2019 request, were withheld under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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), 24 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the

Elaine Weston SPR19/l 787 Page 3 September 17, 2019 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 Elec. Co., 414 Mass. 609, 614-615 (1993). The Court affinned 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 pennitted 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: (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 ofElec. 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, § lOA(a). In its initial response, the Town did not provide any privilege log or detailed response to account for withholding records in their entirety under the attorney-client privilege. Consequently, the Town did not meet its burden of providing the requisite detail in claiming the privilege. See Suffolk, 449 Mass. at 450 fn.9; see also G. L. c. 66, § 1O A(a). As a result, in my July 1st determination, I ordered the Town to provide Mr. Dewhurst with a detailed response or privilege log. · This office was infonned by Mr. Dewhurst in his September 1st petition for the current appeal that the Town did not provide Mr. Dewhurst with a privilege log or detailed response as directed in my July 1st detennination. I find that the Town has not met its burden of claiming the attorney-client privilege to withhold records under both the 3-part test in Suffolk and the G. L. c. 66, § lOA(a).

Elaine Weston SPR19/l 787 Page4 September 17, 2019 Exemption (c) - personnel clause Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The Town has indicated that certain records were withheld under the first clause of Exemption (c). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluatfons, disciplinary documentation, and promotion, demotion, or te1mination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers.Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). The Town did not detail the particular records that were withheld under the first clause of Exemption (c), and how those responsive records constitute core categories ofrecords useful in making an employment decision, such as disciplinary, demotion or termination infonnation pertaining to the identified employee. See Worcester, 58 Mass. App. Ct. at 5. Therefore, the Town has not met its burden of specificity in claiming that the records may be withheld as personnel infom1ation under the first clause of Exemption (c ). Exemption (d) The Town claimed in its August 22nd response that certain records were withheld under Exemption ( d) related to the development of policy positions of the Town. 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

Elaine Weston SPR19/1787 Page 5 September 17, 2019 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). The Town did not meet its burden of specificity in claiming Exemption (d) to withhold records related to contact/collective bargaining proposals. The Town is reminded that any factual information that is not deliberative or policy making materials, and/or that is an opinion or conclusion is not exempt under Exemption ( d). The Town did not explain how disclosure of any of the records or portions of the records could taint the deliberative process. The Town must provide a detailed response or index to explain what records it is in possession of that it is withholding under Exemption ( d). Order Accordingly, the Town is ordered to provide Mr. Dewhurst 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: Stephen C. Dewhurst