William Creighton v. Abington, Town of - Office of the Town Clerk (SPR 20220048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 20, 2022 SPR22/0048 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 Appeals This request was the subject of a previous appeals. See SPR21/2914 Determination of the Supervisor of Records (November 17, 2021); SPR21/3169 Determination of the Supervisor of Records (December 15, 2021). In my December 15th determination, concerning Item 1, I advised the parties to contact the Office of the Attorney General given the Open Meeting Law issues raised. Concerning Item 2, I ordered the Town to clarify the issues regarding its claim of attorney-client privilege. Subsequently, the Town responded on December 29, 2021. Unsatisfied with the Town’s response, Mr. Creighton 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 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 SPR22/0048 Page 2 January 25, 2022 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. Current Appeal In his appeal petition, Mr. Creighton contends that “the Town has not met its burden in applying the attorney-client privilege to withhold records from disclosure.” The Town’s December 29th Response In its December 29, 2021 response, the Town states that “the Town withheld from disclosure additional correspondences related to Item 2 because they are protected as 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 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).

Scott Lambiase SPR22/0048 Page 3 January 25, 2022 The Town provides the following information concerning its claim of attorney-client privilege: These correspondences occurred on September 20, 2021; October 1, 2021; and October 20, 2021. The correspondences are emails between Town Manager Scott Lambiase, [Richard Massina] (counsel for the Town) and Attorney Jaime Kenny, Esq. (also counsel for the Town). Finally, these correspondences deal only with legal advice and strategy for dealing with a resident complaint. However, the Town must also substantiate that these records are actually privileged. First, these communications (emails) were sent between the Town’s Town Manager and two (2) attorneys currently serving as counsel for the Town. These correspondences relate to the Town’s receipt of [Mr. Ingber’s] complaint against the individual named in [his] request and the request for legal advice about how to best move forward. Being that these correspondences occur only between a Town official and the Town’s attorneys about legal advice, these communications were made in confidence and the privilege has not been waived. Where the Town has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, I find the Town has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Ingber 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: William Creighton