David Lawless v. Swampscott, Town of - Town Clerk (SPR 20212383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2383 Susan J. Duplin Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907-1940 Dear Ms. Duplin: I have received the petition of David Lawless appealing the response of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Lawless requested an identified email thread. In a September 7, 2021 response, the Town informed Mr. Lawless, “...the Town has one e-mail…that is responsive to this request. Please be advised; however, that this e-mail is being withheld pursuant to the attorney-client privilege. See, e.g., G. L. c. 4, § 7(26); 950 CMR 32.06(3). See Suffolk Construction Co., 449 Mass. at 449-50 (concluding that enactment of the Public Records Law did not destroy the protection provided by the attorney-client privilege to communications between government entities and their lawyers).” Unsatisfied with the Town’s withholding of the email, Mr. Lawless petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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 J. Duplin SPR21/2383 Page 2 September 27, 2021 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). 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 (2017); see also Hanover Ins. Co. v. Rapa & 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 September 7th response, the Town indicates that the August 3, 2021 email is a confidential communication from the Town Administrator, the Public Works Director and the Human Resources Director to the Town’s Legal Counsel seeking legal advice on a personnel matter. The Town provided the authors and recipients of the email in their search for legal advice from their legal counsel in a confidential communication, and provided the subject matter which pertains to a personnel matter. The Town has met the requirements of the Public Records Law and the first two prongs of the test in Suffolk; however, the Town did not state whether this confidential communication between the Town and its legal counsel in seeking legal advice has been waived. See Suffolk Constr. Co., 449 Mass. at 450 n.9; see also G. L. c. 66, § 10A(a). I find that the Town must clarify whether the August 3rd email communication between the Town and its Legal Counsel has been waived. Conclusion Accordingly, the Town is ordered to provide Mr. Lawless with a response to the request, 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 J. Duplin SPR21/2383 Page 3 September 27, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Lawless