Gary L. Champion v. Ipswich Town Manager (SPR 20220062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2022 SPR22/0062 Anthony Marino Town Manager Town of Ipswich 25 Green Street Ipswich, MA 01938 Dear Mr. Marino: I have received the petition of Gary Champion appealing the response of the Town of Ipswich (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 29, 2021, Mr. Champion requested the, “… Town Counsel’s billing statements from May 2021 to present.” The Town responded on December 10, 2021. Unsatisfied with the response, Mr. Champion petitioned this office and this appeal, SPR22/0062, 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). The Town’s December 10th Response In its December 10th response, the Town claimed the attorney-client privilege to redact the requested 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

Anthony Marino SPR22/0062 Page 2 January 25, 2022 Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; -se-e -al-so- -H-an-o-v-er- I-n-s.- C-o-. -v.- R-a-p-o- &- -Je-p-se-n- I-ns-. -S-er-v-s., 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. The indices shall include 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, § l0A(a). In its response, the Town stated, “…the public records law does not abrogate the common law attorney-client privilege. Therefore, I satisfied your request as you received the number of hours worked/billed and the totals that we paid out. The detail of what was discussed falls under attorney-client privilege.” 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, § l0A(a). In addition, the records custodian must satisfy the three part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Based upon the Town’s response, I find the Town has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Mr. Champion with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this

Anthony Marino SPR22/0062 Page 3 January 25, 2022 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: Gary Champion