Doreen Taylor v. Seekonk, Town of - Town Clerk (SPR 20211272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1272 Shawn E. Cadime Town Administrator Town of Seekonk 100 Peck Street Seekonk, MA 02771 Dear Mr. Cadime: I have received the petition of Doreen Taylor appealing the response of the Town of Seekonk (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 16, 2021, Ms. Taylor requested an “[e]lectronic copy of all Executive Session Minutes for meetings held from January 1, 2020 through and including December 31, 2020.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1193 Supervisor of Records Determination (May 19, 2021). In my May 19th determination, I ordered the Town to provide Ms. Taylor with a response to her request. Subsequently, the Town provided redacted copies of responsive records. Unsatisfied with the Town’s response, Ms. Taylor appealed, and this case 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); 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 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

Shawn E. Cadime SPR21/1272 Page 2 June 1, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In her appeal petition, Ms. Taylor contends that: [I]n the written response from the Town Administrator, it is noted that the reason for withholding minutes is due to MGL C30A S22(f) and yet the agendas all list the purpose of the meetings as different. Contractual negotiations for all agreements listed have been settled and therefore are open to the public. In some instances, the Town Administrator noted C30A S22(f) for reason of redactions but provided the copy. In others it is cited for reason to withhold and he did not provide a copy. The Town’s May 19th Response In its May 19, 2021 response, the Town provided responsive records, indicating that it was withholding or redacting a number of records based on Exemption (a) and Exemption (c) of the Public Records Law, and based on attorney-client privilege. Exemption (a) Exemption (a), also known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Shawn E. Cadime SPR21/1272 Page 3 June 1, 2021 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Town asserts the following: The Open Meeting Law, specifically G.L. c.30A, §22(f), provides that executive session minutes and related records of the session are exempt from disclosure “as long as publication may defeat the lawful purposes of the executive session.” To the extent that the release of a given set of minutes or portion thereof would defeat the lawful purpose for which the executive session was held, those minutes have been withheld or redacted as reflected in the attached list pursuant to Section 22(f). The Town’s response, along with Ms. Taylor’s appeal petition, raises several issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the AGO for a determination on the status of the executive session minutes. 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). In its response, the Town provides “a log of the meeting minutes that the Town has redacted portions of pursuant to the attorney-client privilege. These communications were made

Shawn E. Cadime SPR21/1272 Page 4 June 1, 2021 in confidence, for the purposes of soliciting and providing legal advice, and the Town has not waived the attorney-client privilege.” In addition, a review of the un-redacted portions of the responsive records provides a description of the authors and recipients, the dates, and the substance of the redacted discussions. Accordingly, I find the Town has met its burden to redact portions of the responsive records under the attorney-client privilege. Conclusion Accordingly, I will consider this matter closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Doreen Taylor