Bob Murchison v. Sherborn, Town of (SPR 20213146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3146 Jackie Morris Town Clerk Records Access Officer 19 Washington Street Sherborn, MA 01770 Dear Ms. Morris: I have received the petition of Bob Murchison appealing the response of the Town of Sherborn (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 11, 2021, Mr. Murchison requested “all communications by [a named individual] or others at BOH [Board of Health] that relate to Farm Road since November 1st.” Mr. Murchison then expanded his request to extend the time period to November 18, 2021. The Town responded on November 18, 2021, and again on December 1, 2021, providing a number of responsive records and claiming to withhold others pursuant to the attorney-client privilege. Unsatisfied with the Town’s response, Mr. Murchison 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 agency or municipality 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. Att’y 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. 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

Jackie Morris SPR21/3146 Page 2 December 13, 2021 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. The Town’s December 1st Response In its December 1, 2021 response, the Town states that it is withholding various emails pursuant to the attorney-client privilege. 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 not inspect the record but 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). Under the attorney-client privilege, the Town argues the following: Emails exchanged with [the named individual] or others at the Board of Health and Town Counsel are exempt from disclosure under the common law attorney-client communication privilege. The attorney-client privilege attaches to the portions of a record where legal advice was sought or obtained in confidence, and the privilege to such advice has not been waived by the Town. In a letter to this office and Mr. Murchison on December 9, 2021, the Town reiterates that “here, the communication between the Board and Town Counsel were for the purpose of obtaining legal advice, and not intended to be shared with the public.” Additionally, in its December 1st response, the Town provides a description of each record being withheld, including the names of the authors and recipients, the dates, and a brief description of the substance of each email.

Jackie Morris SPR21/3146 Page 3 December 13, 2021 Based on the Town’s response explaining the grounds for claiming the attorney-client privilege, and where the Town has provided a detailed description of each record withheld pursuant to the privilege, including the names of the authors and recipients, the dates, and the substance of each email, I find that the Town has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Murchison is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Bob Murchison