Carl Guyer v. Southborough Town Administrator (SPR 20192516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 8, 2020 SPR19/2516 Mark J. Purple Town Administrator Town of Southborough 17 Common Street Southborough, MA O1 772 Dear Mr. Purple: I have received the petition of Carl Guyer appealing the response of the Town of Southborough (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Previous appeal This request was the subject of a previous appeal. See SPRl 9/2246 Determination of the Supervisor of Records (November 18, 2019). In my November 18th determination I indicated that the Town must provide a response to Mr. Guyer in a manner consistent with the order, the Public Records Law, and its Regulations. Tlte 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); (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). 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

Mark J. Purple SPR19/2516 Page 2 January 8, 2020 Current appeal The Town responded to Mr. Guyer's request on December 4, 2019 by denying access to responsive records pursuant to the attorney-client privilege, as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2007). The Town claimed that the February 21, 2006 attorney-client communications and the redacted version of the December 1, 2005 Executive Session minutes are protected entirely under the common law attorney-client privilege. Common law attorney-client privilege The Supreme Judicial Comi confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk, 449 Mass. 444 (2007). The Supreme Judicial Comi has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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 the Town's December 4111 response to Mr. Guyer, the Town identifies factors in satisfaction of the three-step test to claim that an attorney-client privilege exists as follows: (1) The Town states in part that the legal memo from Attorney Crane was issued in conjunction with legal access issues and potential litigation under chapter 21 E of the Massachusetts General Laws. Further, the Town stated Attorney Crane was present for the responsive executive session meeting and provided legal consultation ; (2) The Town asserted that the communications were "created and issued under the attorney client privilege;" and (3) The Town states no privilege was waived by either the Conservation Commission or the Town of Southborough.

Mark J. Purple SPR19/2516 Page 3 January 8, 2020 The Town asserts that both the redacted minutes of the responsive executive session meeting and the requested legal memorandum are attorney-client privilege communications. However, the Town did not provide a privilege log to account for withholding the records under the attorney-client privilege. Consequently, the Town has not met its burden of providing the requisite detail in claiming the privilege. Accordingly, I find the Town must provide Mr. Guyer a privilege log. See G. L. c. 66, § 1O A(a). It appears Mr. Guyer's appeal is potentially related to the release of executive session minutes which may raise issues under the Open Meeting Law. In order to make a determination regarding the redacted pmiions of the executive session minutes at issue, the Town must clarify whether it is claiming that the purpose for which the executive session remains ongoing. See G. L. c. 30A, § 22(f). Conclusion Accordingly, the Town is ordered to provide Mr. Guyer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, ~u~ Supervisor of Records cc: Carl Guyer