Cindy L. Christiansen, PhD v. Milton, Town of - Town Clerk (SPR 20202162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2162 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Cindy Christiansen appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Christiansen requested “all texts and emails from/to then Chair Wells, Vice- Chair Zullas (including townofrnilton.org accounts and personal/work accounts or any other email or text service used by these 2 members) about the topic of what was referred to in the 5/6 meeting agenda as their ‘Statement’, including but not limited these members emails, texts, and other records to/from fellow board members, the Town Administrator, Tom Dougherty, or Peter Dunn between 4-10-2019 and 5-13-19” (emphasis omitted). The Town responded on September 10, 2020, withholding responsive records pursuant to the attorney-client privilege. Unsatisfied with the Town’s response, Ms. Christiansen petitioned this office and this appeal, SPR20/2162, was opened as a result. 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) (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 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 Galvin SPR20/2162 Page 2 November 23, 2020 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). Current Appeal In its September 10th response, the Town provides a privilege log identifying 30 emails that it has withheld pursuant to the attorney-client privilege. 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 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. v. Division of Capital Asset Mgmt., 449 Mass. 444 (2007). 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, 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, 449 Mass. at 450, n. 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997); 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). 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 “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

Susan Galvin SPR20/2162 Page 3 November 23, 2020 substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its September 10th response, the Town explains that “The statement you reference in your request was written by the Office of Town Counsel and then conveyed to the Select Board. It was legal advice given by the Office of Town Counsel to its client the Select Board. The draft statement was then revised, through a series of emails between Town Counsel and Town employees including members of the Select Board and the Town Administrator.” The Town also states that it has withheld “emails that were sent between Town employees regarding the advice of the Office of Town Counsel” that “in part, relay and concern legal advice obtained from the Office of Town counsel to the Select Board or Town employees who must understand and help to implement that advice.” In her appeal petition, Ms. Christiansen asserts that the select board “leaked their actions and drafted text to one or more residents, thus waiving the privilege.” She additionally argues that select board members waived the privilege by using employer-owned email addresses for communication with town counsel. In light of Ms. Christiansen’s petition, I find it is unclear whether there has been disclosure to third parties of the information contained in the withheld emails. The Town must provide further information regarding this issue. Open Meeting Law In her appeal petition, Ms. Christiansen raises concerns regarding the Town’s compliance with the Massachusetts Open Meeting Law. Please be advised that the interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO). Therefore, I decline to provide a determination as to these allegations. See G. L. c. 30A, § 23. It is recommended that Ms. Christiansen contact the Division of Open Government within the AGO should she seek a determination on these issues. Conclusion Accordingly, the Town is ordered to provide a response to Ms. Christiansen, 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.

Susan Galvin SPR20/2162 Page 4 November 23, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Cindy Christiansen Kevin Freytag, Esq., Murphy Hesse Toomey & Lehane