William Creighton v. Abington, Town of - Office of the Town Manager (SPR 20213169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2021 SPR21/3169 Scott Lambiase Town Manager Town of Abington 500 Gliniewicz Way Abington, MA 02351 Dear Mr. Lambiase: I have received the petition of William Creighton appealing the response of the Town of Abington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2021, Mr. Creighton requested the following: [1] The Board of Selectmen September 27, 2021 executive session minutes (draft and/or final). Since the matter is closed and complete, the draft and/or final minutes should be available to the public. [2] All correspondence regarding complaints against [an identified individual]. This includes all notes, memos, letters, emails, investigation notes and summaries, recommendations, legal counsel correspondence and responses and any other complaint letters. Previous appeal This request was the subject of a previous appeal. See SPR21/2914 Determination of the Supervisor of Records (November 17, 2021). In my November 17th determination, the Town was ordered to provide Mr. Creighton with a response. Subsequently, the Town provided a response on December 2, 2021, including certain responsive records. The Town also denied access to other records under the Open Meeting Law and the common law attorney-client privilege. Unsatisfied with the Town’s response, Mr. Creighton petitioned this office and this appeal, SPR21/3169, 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 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

Scott Lambiase SPR21/3169 Page 2 December 15, 2021 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. The Town’s December 12th response Item 1 In its December 12, 2021 response, the Town stated, “. . . the minutes you seek have not yet been released to the public. While your request alleges that the matter is closed and complete, that is not true. Presently, there are matters still active which relate to that Executive Session and disclosure of the minutes would defeat the lawful purpose of the Executive Session held on September 27, 2021. As such, the town must deny this portion of your request.” The Town’s response and Mr. Creighton’s appeal raise issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes in question. Item 2 Regarding Item 2, the Town enclosed two email records and corresponding attachments. However, the Town indicated “[a]ny other responsive documents that have not been disclosed have been withheld because they fall under the exception for privileged communications between the Town and its attorneys.” 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

Scott Lambiase SPR21/3169 Page 3 December 15, 2021 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). The Town’s response, did not contain the specificity required in a denial of access to public records. Based on the Town’s response, it is unclear how an attorney-client relationship exists between the author and recipient(s) of the communications that were withheld. It is also unclear 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. Additionally, the Town did not identify the records it is withholding from disclosure. The Town must identify what records it has in its possession, custody or control that are responsive to Item 2 of Mr. Creighton’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Mr. Creighton with a response regarding Item 2 of the request, 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: William Creighton