Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20200776)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 28, 2020 SPR20/0776 Susan G. Hazen Town Clerk/Records Access Officer Town of Rowley 141 Main Street Rowley, MA 01969 Dear Ms. Hazen: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley Conservation Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 2, 2020, Mr. Toomey requested “any and all documents or materials relating to the investigation of a RDA permit issued for 366 Central Street Rowley that was approved March 10, 2020 at the [C]onservation [C]omission meeting.” Prior appeal In an April 23, 2020 email to the Supervisor of Records (Supervisor), Mr. Toomey indicated that he was appealing the Town’s provision of records due to the incomplete nature. He indicated his belief that there were more emails. He contended, “[t]he repose emails are missing pdf attachments in [S]ection B, C & D.” As a result, this office opened appeal, SPR20/0684. In my May 5th determination, I found the Town had not met its burden pertaining to redacted email communications, and in not explaining whether it was in possession, custody and control of any further emails. As a result, I ordered the Town to provide a further response. See SPR20/0684 Determination of the Supervisor (May 5, 2020). 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, § 10A(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). 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

Susan G. Hazen SPR20/0776 Page 2 May 28, 2020 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, § 10(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). The Town’s May 12, 2020 response On May 12, 2020, the Town, through its Legal Counsel Thomas A. Mullen, Esq., provided a response pertaining to Mr. Toomey’s requests to both the Building Inspector (Town Request No. 2020-18) and the Conservation Commission (Town Request No. 2020-19); and also, in response to the Supervisor’s May 5th determination. In his May 12th response, Attorney Mullen provided a record of the Building Inspector Ken Ward’s decision with respect to Mr. Toomey’s request for enforcement and an email dated March 11, 2020. The Town refers to these two documents as Exhibit “A.” The Town informed Mr. Toomey that it is withholding two emails under the common law attorney-client privilege which pertain to Mr. Toomey’s March 20th request to the Building Inspector. The Town refers to these two emails as Exhibit “B.” Initially, the Town redacted the personal email addresses of members of the Conservation Commission from one email under Exemption (o) of the Public Records Law; however, on May 12th the Town provided Mr. Toomey with an un-redacted copy of the email. The Town refers to this email as Exhibit “C.” Additionally, in its May 12th response, the Town explains, “[i]n reviewing his materials again, Mr. Baeslack [the Conservation Agent] has found certain cover emails which had not previously been produced because they had not been printed and made part of the paper file. [Attorney Mullen] encloses them…Having now made two (2) diligent searches, the Town’s Conservation Agent is confident that he has located and produced all documents responsive to your request.” In a May 22, 2020 response, Attorney Mullen addressed the contention that Mr. Toomey was not provided with the email attachments with the Town’s May 12th response pertaining to Exhibits B, C and D. Attorney Mullen indicates that he did not include those attachments, because it was his belief that the Town had already provided those attachments. On May 22nd, Attorney Mullen provided Mr. Toomey with those requested attachments.

Susan G. Hazen SPR20/0776 Page 3 May 28, 2020 Common law attorney client privilege The Town withheld two email communications under the common law attorney-client Privilege, as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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 Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records 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 called 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 Court, 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 3. the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997); -se-e -al-so- -H-an-o-v-er- I-ns-. -C-o-. v-.- R-a-p-o -&- J-e-ps-e-n 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, § 10A(a).

Susan G. Hazen SPR20/0776 Page 4 May 28, 2020 In the Town’s May 12th response, Attorney Mullen indicates that the Town withheld two emails under the attorney-client privilege. Attorney Mullen describes the communications as: “A 2-page email from Town Administrator Deborah Eagan to me in my capacity as Town Counsel dated March 30, 2020 and copying Building Inspector Ken Ward (and no one else). The purpose of the email was to seek my legal advice as to how she should respond to an email to her from [Mr. Toomey] of the same date. The privilege attaching to this email has never been waived.” “A 1-page email from me in my capacity as Town Counsel to Town Administrator Deborah Eagan dated March 30, 2020 and copying Building Inspector Ken Ward (and no one else). The purpose of the email was to confirm, restate and expand upon certain legal advice I had given her by telephone that day as to how she should respond to [Mr. Toomey’s] email to her of the same date. The privilege attaching to this email has never been waived.” In its May 12th response, the Town has met the 3-step test in Suffolk by indicating 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; the communications were made in confidence; and that the privilege as to these communications has not been waived. See Suffolk Constr. Co., 449 Mass. 450, fn. 9 (2008). With its May 12th and May 22nd responses, I find that the Town has now met its burden in responding to Mr. Toomey’s request. G. L. c. 66, § 10A(a). Conclusion Accordingly, whereas the Town has met its burden in responding to Mr.Toomey’s request, I will now consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Toomey Thomas A. Mullen, Esq.