Robert Bland v. Rockport, Town of (SPR 20202019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2019 Patricia E. Brown Town Clerk Town of Rockport 34 Broadway Rockport, MA 01966 Dear Ms. Brown: I have received the petition of Robert Bland appealing the response of the Town of Rockport (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically on October 1, 2020, Mr. Bland requested the following records: “1. Correspondence received by the department and/or by Director Joe Parisi on or about September 21, 2020 from Alan E. Lipkind, Esq., Burns & Levinson, LLP regarding the status of Dawn Avenue, north of Long Branch Avenue, abutting the properties at 18 Long Branch Avenue and 20 Long Branch Avenue. 2. Any correspondence in reply to #1 above. 3. Any correspondence with town counsel related to #1 above.” 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). 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); 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

Patricia E. Brown SPR20/2019 Page 2 November 2, 2020 The Town’s October 16th Response In its October 16th response, the Town identified two records responsive to the request and claimed that the records are protected entirely under the common law attorney-client privilege and cited the case, Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448 (2007). Common law attorney-client privilege 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 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. at 444. 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. at 609. 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 “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). The Town asserted, “that the two responsive e-mails contain information protected by the attorney-client privilege sent for purposes of obtaining legal advice from Town Counsel regarding Long Branch Avenue for which the privilege has not been waived.” The Town provided the date the first email was sent as well as the sender and the general recipients.

Patricia E. Brown SPR20/2019 Page 3 November 2, 2020 Although the Town provided information regarding the nature of these records, I find that in accordance with G. L. c. 66, § l0A(a), the Town must provide a detailed description of the the two emails records, 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, as required by G. L. c. 66, § l0A(a). Further, the Town must clarify that the communications were made in confidence. Conclusion Accordingly, the Town is ordered to provide Mr. Bland with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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, Rebecca S. Murray Supervisor of Records cc: Robert Bland