Mary Dormer v. Carver, Town of - Town Clerk (SPR 20213212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2021 SPR21/3212 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.” Previous appeal; petition This request was the subject of a previous appeal and subsequent time petition. See SPR21/2475 Determination of the Supervisor of Records (October 12, 2021) and SPR21/2845 Determination of the Supervisor of Records (November 3, 20221). In my October 12th determination, I found the Town had not met its burden in applying the attorney-client privilege to withhold records from disclosure. Accordingly, the Town was ordered to provide a privilege log and explain whether the privilege has been waived. The Town provided a response on December 9, 2021. Unsatisfied with the Town’s response, Ms. Dormer petitioned this office and this appeal, SPR21/3212, 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). 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 SPR21/3212 Page 2 December 15, 2021 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 9th response In its December 9, 2021 response, the Town asserted that the privilege to these communications has not been waived and provided a privilege log. 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). Based on the Town’s response, confirming that the privilege to these communications has not been waived, and providing a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Town has met its burden to withhold these records from disclosure under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Dormer is not

Cara Dahill SPR21/3212 Page 3 December 15, 2021 satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Dormer