Mary Dormer v. Carver, Town of - Town Clerk (SPR 20212475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 12, 2021 SPR21/2475 Cara Dahill Town Clerk Town of Carver Carver Town Hall 108 Main Street Carver, MA 02330 Dear Ms. Dahill: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2021, Ms. Dormer requested “all legal opinions from January 2019 to present.” On September 27, 2021, the Town provided a response denying access to responsive records pursuant to the common law attorney-client privilege. Unsatisfied with the Town’s response, Ms. Dormer petitioned this office and this appeal, SPR21/2475, 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 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. 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

Cara Dahill SPR21/2475 Page 2 October 12, 2021 The Town’s September 27th response In its September 27, 2021 response, the Town states that the “request . . . implicates legal opinions confidentially communicated to the Town by Town Counsel. The records responsive to your request are protected under attorney-client privilege. The ‘attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.’ Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 448 (2007).” The Town asserts “[t]he Massachusetts Supreme Court has unequivocally ruled that ‘confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.’ Id. at 450. . . . Here, the records requested fall invariably within the protective scope of attorney-client privilege, and those records will be withheld accordingly.” 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). Although the Town claims the records “. . . implicates legal opinions confidentially communicated to the Town by Town Counsel[,]” the Town does not explain whether the privilege has been waived. Further, the Town has not provided a privilege log in accordance with G. L. c. 66, § 10A(a). As such, I find the Town has not met its burden in applying the attorney- client privilege to withhold records from disclosure. The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Ms. Dormer with a response to the request,

Cara Dahill SPR21/2475 Page 3 October 12, 2021 provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Dormer