David Calhoun v. Plymouth Town Clerk (SPR 20200158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 5, 2020 SPR20/0158 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Calhoun requested an email with the subject "Calhoun." The Town responded to his request by providing a redacted responsive record. 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 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, § 1O (b )(iv); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. · 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 SPR20/0158 Page 2 February 5, 2020 Common law attorney-client privilege In a response dated January 24, 2020, the Town indicates "our legal counsel has determined that the redacted portion of the e-mail is protected under the attorney-client privilege, since the Town is undertaking confidential communications with our legal counsel for the purpose of obtaining legal advice or assistance. Suffolk Construction. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). The redacted portion of the e-mail includes the sender, recipient, subject, and the date and time of the e-mail. This said, your records request has been denied." 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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. 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 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, § 1O A(a). Although the redaction may fall within the attorney-client privilege, as indicated above, I find the Town must provide a privilege log in accordance with the Public Records Law. Although the Town has identified the redaction as confidential communication, received from the Town by legal counsel, for the purpose of obtaining legal advice, the Town must describe the substance of the redaction. Further, the Town must confirm that the privilege has not been waived. Conclusion Accordingly, I find that the Town is to provide Mr. Calhoun with a response in a manner consistent with this determination, the Public Records Law, and its Regulations within ten 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.

Connor Anderson SPR20/0158 Page 3 February 5, 2020 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Dave Calhoun