David Calhoun v. Plymouth, Town of - Town Manager (SPR 20200249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 13, 2020 SPR20/0249 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." Unsatisfied with the Town's supplemental response regarding redactions, Mr. Calhoun petitioned this office and SPR20/0249 was opened as a result. Previous Appeals This request was the subject of a previous appeal. See SPR20/0158 Determination of the Supervisor of Records (February 5, 2020). In my February 5th determination, I found the Town must provide a response to Mr. Calhoun; specifically, to describe the substance of the redaction and confirm that the attorney-client privilege had not been waived. 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 communications were received froll1 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. 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 SPR20/0249 Page 2 February 13, 2020 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, § lOA(a). Current Appeal In its February 1o th supplemental response to Mr. Calhoun, the School states "[t]he Town of Plymouth will not waive the attorney-client privilege relative to this appeal, since the redacted portion of the e-mail in question contains confidential communications with our legal counsel for the purpose of obtaining legal advice and assistance. Suffolk Construction. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). This said, please find attached an updated privilege log, which includes a summary of the content of the redacted portion of the e-mail in question." In the attached privilege log, the Town describes the substance of the redaction as "[a]dvice on how to proceed with the subject matter (interactions between David Calhoun of Saxon Partners and Lawrence Pizer) of Lawrence Pizer's email to Marlene McCollum dated September 18, 2019." In its supplemental response, the Town provided a detailed description of the substance of the redacted communication pursuant to the attorney-client privilege. The Town also included the date of the communication; the names of the attorney and Town employee; the substance of the records; and grounds upon which the attorney client privilege is being claimed. See G. L. c. 66, § lOA(a). Whereas the Town has established that the redacted material is privileged communications, and the privilege has not been waived, I find the Town has met its burden to redact the information within the email under the attorney-client privilege. Conclusion In light of the above, I find the Town has met its burden to redact the information under the attorney-client privilege. Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Calhoun