David Calhoun v. Plymouth, Town of - Town Manager (SPR 20191980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords October 10, 2019 SPR19/1980 Connor Anderson Archivist/Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of David Calhoun appealing the response of the Town of Plymouth (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Calhoun requested: "a copy of all emails, notes, draft letters etc. provided" to the Zoning Board of Appeals members, and the Chairman, Administrative Assistant to the Zoning Board of Appeals or Zoning Board of Appeals staff on August 20, 2019 and August 21, 2019. On September 25, 2019, the Town provided responsive records via WeTransfer accompanied by a response. The Town's response states, "[e]mails from members of the Zoning Board of Appeals' personal email addresses are provided where related to your request. Board · Member Michael Leary indicated via phone conversation on September 24, 2019 that he had no records related to this request. Per your request, only emails received by the parties you specified are included as well. Please be advised that twenty-five emails have been withheld and another six have been partially redacted pursuant to the attorney-client privilege." Citing Suffolk Constr. Co., Ii1c. v. DCAM, 449 Mass. 444, 449-50 (2007). As a result, on September 2?111, Mr. Calhoun petitioned the Supervisor of Records (Supervisor), and SPRl 9/1980 was opened. In his September 27th petition, Mr. Calhoun objects to the records being provided via WeTransfer because the records were not accessible, and that he requested the records be provided on a thumb drive. In addition, Mr. Calhoun appeals the Town's attorney-client privilege claim to the withheld and redacted records. 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 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

Connor Anderson SPR19/1980 Page 2 October 10, 2019 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 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). Common law attorney-client privilege The Department has claimed that the records provided have been redacted 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 lawye1; 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), 424 Mass. 430 (1997). 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 CoU1i 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 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: (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

Connor Anderson SPR19/1980 Page 3 October 10, 2019 (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 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 that the Supervisor, "shall require, as paii 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 provided Mr. Calhoun with a privilege log to account for the email communications withheld and/or redacted under the common law attorney-client privilege. The Town provided the name of the employee; date of the email; time that the email was either sent or received; and that the email fell under the attorney-client privilege. However, the Town's privilege log did not indicate both the names of the author and recipient, nor the substance of each of the records with a detailed description of the grounds upon which attorney client is being claimed. See G. L. c. 66, § lOA(a). Further, it is unclear whether 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; that the communications were made in confidence; and that the privilege has not been waived. See Suffolk, 449 Mass. 450, fn 9. Providing records in a particular format In September 27th petition for an appeal, Mr. Calhoun indicates that he requested that the records be provided on a thumb drive. Based on the Town's September 25th response, Mr. · Calhoun was provided with a link to We Transfer to download the records. Mr. Calhoun informed this office and the Town that the records were un-accessible thru WeTransfer. The Town is advised, under the Public Records Law, "[t]he records access officer shall, to the extent feasible, provide the public record in the requestor's preferred format or in the absence of a preferred format, in a searchable, machine readable format." See G. L. c. 66, § . 6A( d). It is unce1iain why the records calll1ot be provided to Mr. Calhoun on a thumb drive, as requested. To the extent it is feasible to provide the requested records on a thumb drive, the Town must do so. The Town and Mr. Calhoun are encouraged to communicate further to discuss providing the records to Mr. Calhoun in an accessible malll1er. Conclusion Accordingly, the Town is ordered to provide Mr. Calhoun with a privilege log pertaining to the withheld and redacted records under the attorney-client privilege that complies with

Connor Anderson SPR19/1980 Page 4 October 10, 2019 Suffolk and G. L. c. 66, § 1O A(a), and ordered to provide the public records responsive to his request 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: David Calhoun