David Calhoun v. Plymouth, Town of - Town Manager (SPR 20192189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 12, 2019 SPR19/2189 Connor Anderson Archivist & Records Access Officer Town of Plymouth 26 Comi Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of David Calhoun of Saxon Partners appealing the response of the Town of Plymouth 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." Prior appeal The responsive records were the subject of prior appeals. See SPRl 9/1978 and SPRl 9/1980 Determinations of the Supervisor of Records (Supervisor) (October 10, 2019). . The Town pro".ided responsive records; however, it advised Mr. Calhoun, "twenty-five emails were withheld and six emails were partially redacted pursuant to the attorney-client privilege." Citing Suffolk Constr. Co., LLC v. DCAM, 449 Mass. 444, 449-50 (2007). As a result of the emails redacted and withheld, Mr. Calhoun petitioned the Supervisor, and SPRl 9/1980 was opened. On September 26, 2019, the Town provided a privilege log to explain the emails withheld and redacted under the common law attorney-client privilege; however, the Town did not meet its burden of specificity under the 3-part test in Suffolk and under G. L. c. 66, § lOA(a). 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 · SPR19/2189 Page 2 November 12, 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 p01iions 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 Town has claimed that the common law attorney-client privilege allows the Town to withhold the 25 emails and the 6 redacted emails as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2007). 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), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Cami (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor 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 calle.d 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 Cami, 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 SPR19/2189 Page 3 November 12, 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 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 that 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). On September 26tl1, the Town provided Mr. Calhoun with a response, including a privilege log to account for the email communications withheld under the common law attorney client privilege. In its September privilege log, 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 did it provide 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 was unclear from the Town's privilege log and response 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. I ordered the Town to provide a more detailed privilege log to comply with both Suffolk and G. L. c. 66, § 1O A(a). On October 3rd, the Town provided a privilege log pe1iaining to three emails, and on October 2211d, the Town provided an eighteen-page privilege log that listed the senders' (authors) and recipients; the individuals who were copied on the email(s); dates and times that the emails were sent or received; the substance or subject matter of the emails; and that the emails have been withheld under the attorney-client privilege because the communications were between lawyer and client for the client's purpose in obtaining legal advice. The Town's Legal Counsel, KP Law, P. C. indicated that the communications were made in confidence and the privilege has not been waived. Based on the Town's responses and privilege logs pertaining to the emails withheld, I find that the Town has met its burden to withhold the responsive emails pursuant to the attorney-client privilege under the 3-part test in Suffolk and the Public Records Law. See Suffolk, 449 Mass. 450, fn 9; G. L. c. 66, § lOA(a).

Connor Anderson SPR19/2189 Page 4 November 12, 2019 Still at issue, however, are the six (6) emails that the Town provided Mr. Calhoun in redacted format pursuant to the attorney-client privilege. It is Mr. Calhoun's contention that the privilege does not apply because the emails were between Town employees and the Town's Legal Counsel is copied on the emails. It is unclear whether the Town has provided a privilege log for the 6 redacted emails to support its attorney-client privilege claim under the 3-part test in Suffolk and under the Public Records Law. Suffolk, 449 Mass. 450, fn 9; G. L. c. 66, § lOA(a). Conclusion Accordingly, the Town is ordered to provide Mr. Calhoun with a respons, in a manner consistent with this determination, 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