David Calhoun v. Plymouth, Town of - Town Manager (SPR 20200338)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2020 SPR20/0338 Connor Anderson Town Manager 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, on February 6, 2020, Mr. Calhoun requested unredacted email from a Town employee to an identified individual on February 6, 2020. 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); 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). Tlte Town's February 2JS1 Response In its February 21, 2020 response, the Town produced two emails with redactions between the Town's legal counsel and Town employees regarding legal assistance on the litigation between Town and Veolia Water North American-Northeast LLC and cited attorney client privilege in support of the redactions. Unsatisfied with the Town's response, Mr. Calhoun appealed on February 21, 2020 and SPR20/0338 was opened as a result. 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 SPR20/0338 Page 2 March 4, 2020 Common law attorney-client privilege The Town has claimed that the redacted email communications are between the Town's legal counsel and the Town employees and is privilege communications which are protected entirely under the common law attorney-client privilege. The Supreme Judicial Court 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 Court 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). 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 II 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. 11 G. L. c. 66, § lOA(a). In its February 21st response, I find the Town has established the existence of an attorney client relationship in compliance with Suffolk and the Public Records Law. The Town stated that "[t]he redacted portion of the e-mail ... is privileged communication for the purpose of obtaining legal advice ... between Town employee and Town counsel and ... is protected under the attorney-client privilege [and] [t]he Town does not waive the attorney-client privilege." Further, the Town produced a compliant privilege log of the redacted email. See Suffolk, 449 Mass. at 450 n.9; See G. L. c. 66, § lO(d)(iv); 950 C.M.R. 32.06(3)(c)(4). Co11clusio11 Accordingly, I will now consider this administrative appeal closed. If Mr. Calhoun is not . satisfied with the resolution of this administrative appeal, please be advised that this office shares

Connor Anderson SPR20/0338 Page 3 March 4, 2020 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: David Calhoun