Thomas J. Palleria v. Swampscott, Town of - Town Administrator (SPR 20191795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 18, 2019 SPR19/1795 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 fonner national grid Corridor between the Swampscott Train Station and Marblehead Line" (Item 2). Previous appeal This request was the subject of a previous appeal. See SPR 19/1633 Determination of the Supervisor of Records (August 23, 2019). In my August 23rd determination I ordered the Town to provide Mr. Palleria a response in a manner consistent with the order, the Public Records Law and its Regulations. Attorney Janelle Austin responded on behalf of the Town on September 3, 2019. Mr. Palleria appealed and SPR19/1795 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, § IOA(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 demonstrate the application of an exemption 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

Sean Fitzgerald SPR19/l 795 Page2 September 18, 2019 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 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). Current appeal The Town initially responded on August 7, 2019. In its August 7th 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 this 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." In my August 23rd determination I found the Town must provide a description of the record at issue in Item 2 in accordance with G. L. c. 66, § lOA(a). Specifically, I indicated 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. I also found that with respect to Exemption (d), although the Town explained that the record pertains to ongoing policies being developed by the Town regarding the Rail Trail project, it was unclear how the records at issue may be withheld in their entirety. In its September 3rd response the Town indicates" ... Mr. Palleria was provided the Stantec agreement in response to the request, but was not provided a copy of a confidential title opinion report prepared by the Town's title attorney related to the ongoing rail trail project in Town." Mr. Palleria objects to this response and asserts, in part, that the "[a]ttorney client privilege does not protect the underlying infonnation and facts." 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 comrpunications 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

Sean Fitzgerald SPR19/l 795 Page 3 September 18, 2019 attorney-client communications to a third party generally undermines the privilege. See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). In its August 7th response the Town indicated, in part," ... where the Town or its agents receives infonnation 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 asserted "[i]n this instance, the record responsive to Item 2 was prepared by Town Counsel's title expert and provided confidentially to the Town's attorneys and Town officials, and, as such, the report is a confidential record between Town officials and Town attorneys for the purpose of obtaining legal advice." In the September 3rd response Attorney Austin asse1is " ... the Town is withholding a June 29, 2010 title examination opinion prepared by the Town's title attorney, Jeffrey L. Ontell of Marsh, Moriarty, Ontell & Golder, P.C. in Boston, Massachusetts provided to Attorney Katherine Klein of KP Law, P.C., Town Counsel, and then provided confidentially to the Town." She continues by contending "[t]his report constitutes a confidential legal opinion of title counsel, Attorney Ontell, to the Town regarding the Town's rail trail project, and an opinion of Attorney Ontell of title relative to the Massachusetts Electric Company property. The June 29, 2010 opinion of Attorney Ontell was prepared at the Town's request and was provided confidentially to the Town's attorneys and Town officials for the purposes of obtaining confidential legal advice related to the Town's rail trail project and real estate matters involving said project, which remains an ongoing legal and policy matter at this time. Further, the Town has not waived the privilege associated with this opinion of Attorney Ontell." Attorney Austin further asserts "[u]nder Massachusetts law, where the Town or its agents receives infonnation 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" and cites Comm 'r of Revenue and Suffolk in support of its position. She notes that "[i]n this instance, the record responsive to Item 2 of Mr. Palleria's request was prepared by Town Counsel's title expeti, Attorney Ontell, at Marsh, Moriarty, Ontell & Golder, P.C., and provided confidentially to the Town's attorneys and Town officials, and, as such, the report is a confidential record between Town officials and Town attorneys for the purpose of obtaining legal advice." Pursuant to the PubHc 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). The Town's August 7th and September 3rd responses provide the name of the author and recipients as well as the date of the record at issue. The Town also provides information about the substance of the record, specifically that it is "a confidential legal opinion of title counsel,

Sean Fitzgerald SPR19/l 795 Page4 September 18, 2019 Attorney Ontell, to the Town regarding the Town's rail trail project, and an opinion of Attorney Ontell of title relative to the Massachusetts Electric Company property," as well as the grounds upon which the attorney-client privilege is being claimed, specifically that the record "was prepared at the Town's request and was provided confidentially to the Town's attorneys and Town officials for the purposes of obtaining confidential legal advice." As a result, I find the Town has met the criteria required by G. L. c. 66, § 1O A(a) when claiming the attorney-client privilege. See G. L. c. 66, § 1O A(a) (" ... that where a record has been withheld on the basis of a claim of the attorney-client privilege, the supervisor of records shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record ...." ); see also December 2, 2016 letter from the Office of the Attorney General to the Supervisor of Records (finding that even purely factual information contained in a report is subject to the attorney-client privilege and not required to be disclosed). I have enclosed this letter for your review. Consequently, I decline to opine on the Town's Exemption (d) claim . . Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Thomas Palleria Janelle Austin, Esq. Enclosure

1'HE COMI\10N\VEALT.H OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHRURTON PLACf: BOSTON, MASSACHUSETTS 02 J 08 TEL: (6 l 7) 727-2200 MAURA HEALEY AH ORNEY GENERAL ,v,v,v.,nnss.gov/ago December 2, 2016 Shawn A. Williams, Esq. Supervisor of Records Office of the Secretary of the Commonwealth Public Records Division One Ashburton Place Room 1719 Boston, MA 02108 RE: SPR 16/183 Dear Supervisor Williams, The Attorney General received your November 2, 2016 letter in which you conclude that the Massachusetts Bay Transit Authority ("MBTA") has failed to comply with your June 10, 2016 order to produce a record in response to a request by Matthew Stout of the Boston Hernld. In your letter, you request that the Attorney General further review this matter and take necessary measures to ensure that the MBT A provides Mr. Stout with any non-exempt, segregable portion of the responsive record. We have undertaken that review, and conclude that the MBTA may continue to withhold the record in its entirety because there appear to be no non-exempt, segregable portions of the responsive record. The record as a whole is not a public record in that it appears, in its entirety, to be protected by the co1mnon law attorney/client privilege. Mr. Stout requested from the MBT A a copy of a report (the "Report") related to employee attendance and leave management generated by its outside legal counsel, Morgan, Brown & Joy, LLP ("MBJ"). The MBTA declined to produce the Report, citing the attorney/client privilege. Mr. Stout appealed that decision to your office, and in turn, you referred the matter for our review to ensure compliance with the Public Records Law. In a September 29, 2016 letter to the MBTA , we explained that "[i]f the MBTA contends that the responsive document is subject to the attorney/client privilege in its entirety, then the MBTA should provide Mr. Stout with a new letter that explains how the attorney/client privilege applies under the Public Records Law lo protect the entire responsive document from disclosure.» We wrote further that "[i]f the MBTA takes these steps promptly, it will have complied with the Supervisor's order, and no fmiher action will be required by this office." The MBTA responded 0

to Mr. Stout by letter dated October 28, 2016, addressing the application of the attorney/client privilege to the Report. You then wrote to the META on November 2. Having received the MBTA's October 28 response and your November 2 letter, we now review this matter for enforcement. The Public Records Law provides that, "[u]pon the determination by the supervisor of records that the record is public, he shall order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order, the supervisor of records may notify the attorney general ... who may take whatever measures fs ]he deems necessary to insure compliance with the provisions of this section." G.L. c. 66, lO(b). We agree with the MBTA that the Report is subject to the attorney/client privilege and thus is not a public record subject to disclosure under the Public Records Law. We take this opportunity to summarize our understanding of how the attorney/client privilege applies to the present situation. In Suffolk Const. Co. v. Div. of Capital Asset Mgmt., the Supreme Judicial Court made clear that the common law attorney/client privilege applies to government entities in the context of requests for public records, even though there is no specific statutory exemption found in the Public Records Law. 449 Mass. 444 (2007). In Suffolk Const., the SJC explained that "the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice." Id. at 448. The SJC further "state[ d] explicitly that confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege." Id. at 450. In harmonizing the attorney/client privilege with the Public Records Law, the SJC concluded that, "[i]f the Legislature intended to divest government officials and entitie.s subject to the public records law of a privilege as basic and impo1tant as the attorney-client privilege, it would have made that intention unmistakably clear." Id. at 461. We apply that framework to the present matter. To demonstrate that a document reflects a privileged communication, a custodian must show that (1) the communications were received from a client during the course of the client's search for legal advice from the attomey 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 Const. at 450, n.9. While we have not reviewed the Report itself, the META has provided us with affidavits from its employees and its attomeys that demonstrate that: (1) the MBTA sought legal advice from attorneys at MBJ regarding employee attendance and leave management; (2) the MBTA provided MBJ with information in confidence so that MBJ could analyze that information and provide legal advice; and (3) at no time has the privileged been waived by disclosure to a third party. Additionally, we note that there have been no allegations that the privilege has been waived. Based on these factual representations, we conclude that the Report was provided by counsel to the MBTA in confidence and is a confidential communication that reflects legal advice. Because the entire Report represents a communication between counsel and client, it is our view that the Report is not a public record and there are no portions that may be segregated for dis.closure under the Public Records Law. Even purely factual information that may be contained within the Repo1t is subject to the privilege and is not required to be segregated for disclosure. See Upjohn v. United States, 449 U.S. 3 83, 3 96 (1981) (" A fact is one thing and a communication concerning that fact 2

is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?"'). While there may occasionally be exceptions to this broad rule, we have seen no evidence to suggest that an exception would apply here. . Because the Report appears to be subject to the attorney/client privilege in its entirety, the MBTA is not required to disclose it in response to a request under the Public Records Law. Therefore, we conclude that the MBT A has met its obligations under the Public Records Law and that no further action is required. We now consider this matter closed. Please feel free to contact me if you have any questions. Sincerely, Jonathan Sclarsic Assistant Attorney General Director, Division of Open Government cc: Jolm Englander, General Counsel, MBTA Matthew Stout, Boston Hemld 3