Brian Carroll v. Norwell, Town of - Office of the Town Clerk (SPR 20210661)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2021 SPR21/0661 Patricia M. Anderson Town Clerk Town of Norwell 345 Main Street Norwell, MA 02061 Dear Ms. Anderson: I have received the petition of Attorney Brian Carroll appealing the response of the Town of Norwell (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2021, Attorney Carroll requested the following: 1. The recording and/or transcript of the recording of the portion of meeting of the Norwell Community Housing Trust held remotely via Zoom on March 4, 2021 in ‘Executive Session,’ without access by any member of the public, commencing at or about 6:30 pm Eastern and concluding at or about 7:20 pm Eastern, at which time the meeting converted to a public session; 2. Any materials presented or discussed during said closed-session meeting; and 3. Any minutes or notes created reflecting the discussion during said closed-session meeting. In an email on March 16, 2021, the Town, through its Counsel, indicates that it provided Attorney Carroll “with a transcript or recording of the open portions of the meeting (before and after the Executive Session).” The Town further explains “there was no pending litigation but it is and was [Town Counsel’s] opinion that that litigation is otherwise demonstrably likely under Gen. L. c. 30A sec. 21. This is a reasonable conclusion based on the totality of the circumstances which is why the C[ommunity] H[ousing] T[rust] wished to schedule the matter for executive session.” Unsatisfied with the Town’s response, Attorney Carroll appealed and this case was opened as a result. Current Appeal In his appeal petition, Attorney Carroll explains that “the [Town’s] denial fails to establish [the] applicability of an attorney-client privilege.” He argues that litigation was not 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 M. Anderson SPR21/0661 Page 2 April 1, 2021 “demonstrably likely” and that the Town “cannot establish any facts to demonstrate any likelihood of litigation as grounds for an assertion of attorney-client privilege over the content of the Norwell C[ommunity] H[ousing] T[rust] Meeting” for which he seeks records. 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 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 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. 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). It is unclear from the Town’s response if it is withholding records based on attorney- client privilege. The Town must clarify this. Attorney Carrol also raises several issues in his appeal potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law

Patricia M. Anderson SPR21/0661 Page 3 April 1, 2021 falls within the authority of the Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. Based on the Town’s response, it is unclear which exemption the Town is citing in order to withhold the requested records. See G. L. c. 66, § 10(b )(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Specifically, the Town must clarify whether it is withholding the records based on the Open Meeting Law, attorney-client privilege, or another exemption to the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Attorney Carrol with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Attorney Brian Carroll