Stanley Mazurczyk v. Chelmsford, Town of - Town Clerk (SPR 20212269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2269 Patricia E. Dzuris Public Records Compliance Officer Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: I have received the petition of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On July 31, 2021, Mr. Mazurczyk requested communications between the town and its legal firm KP Law, P.C. Previous appeal This request was the subject of a previous appeal. See SPR21/2079 Determination of the Supervisor of Records (August 30, 2021). The Department responded on August 31, 2021. Unsatisfied with the response, Mr. Mazurczyk petitioned this office and this appeal, SPR21/2269, 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 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. Dzuris SPR21/2269 Page 2 September 20, 2021 The Town’s August 31, 2021 response In its August 31st response, the Town claimed attorney-client privilege to withhold information. Common law attorney-client privilege 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 Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). 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. 609 (1993). 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. The indices shall include 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, § l0A(a). In its response, the Town stated, “[t]he redacted information provided in the email summary constitutes 1) communications between a client and an attorney, made during the course of the client’s search for legal advice from the attorney; 2) the communications were made in confidence; and 3) the privilege as to these communications has not been waived. The town has redacted the text of the privileged communications but did not redact the To, From, CC, and Subject fields in accordance with 950 CMR 32.06(3)(d).” Based upon the Town’s August 31st response, the Town complied with attorney-client privilege and although the text of the communication were redacted, the Town left intact the emails header information constituting a privilege log. I find the Town has met its burden to withhold the responsive records from disclosure under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed.

Patricia E. Dzuris SPR21/2269 Page 3 September 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Stanley Mazurczyk