Eileen W. Mooney v. Great Barrington, Town of - Selectboard (SPR 20220553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 21, 2022 SPR22/0553 Stephen Bannon Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Mr. Bannon: I have received the petition of Eileen Mooney appealing the response of the Town of Great Barrington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 2, 2021, Ms. Mooney requested a copy of the November 18, 2020 executive session meeting minutes. On February 2, 2022, the Town provided a response, including responsive records in redacted form. The Town redacted the records pursuant to the common law attorney-client privilege. Unsatisfied with the Town’s response, Ms. Mooney petitioned this office and this appeal, SPR22/0553, 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. 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. 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

Stephen Bannon SPR22/0553 Page 2 March 21, 2022 The Town’s February 2nd response In its February 2, 2022 response, the Town indicates, “. . . page one contains a reference to attorney-client privileged communications that is redacted pursuant to Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 446 (2007)[.] . . .” 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). In her appeal petition, Ms. Mooney states the following: [T]he town manager cited [Suffolk] as enabling confidential communications to a public entity. But the lawyer spoke also to a third party, not in confidence to a client. A 2007 advisory on Suffolk Construction Co., written under an earlier administration but published by Attorney General Maura Healey, states . . . “To be privileged, (1) the communication must have been made in connection with the provision of legal advice to the public client; (2) the communication must have been made in confidence; and (3) the privilege must not have been waived.” The advisory further states: “... the protection of the attorney-client privilege may be lost if the parties do not maintain the confidentiality of the communication. The privilege may be lost, for example, in the following circumstances: (1) the communication is made to or in the presence of a third party who is not a necessary agent of the attorney or client ...” The subject of a complaint can hardly be considered an agent of the attorney or

Stephen Bannon SPR22/0553 Page 3 March 21, 2022 client. Thus, there is no confidentiality and I request that the lawyer’s remarks be provided to me. In light of Ms. Mooney’s claims, I find the Town must clarify whether the privilege to the communication has been waived. See Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (concluding that disclosing attorney-client communications to a third party generally undermines the privilege). Also, the Town has not established that the information constitutes a communication from a client for the purpose of seeking legal advice and that it was made in confidence. Additionally, the Town must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Mooney with a response to 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: Eileen Mooney