Richard Serkey v. Plymouth, Town of - Town Manager (SPR 20221165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2022 SPR22/1165 Connor Anderson Records Access Officer Town of Plymouth 26 Court Street Plymouth MA, 02360 Dear Mr. Anderson: I have received the petition of Richard M. Serkey appealing the response of the Town of Plymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2022, Mr. Serkey requested the following: The draft minutes (the actual minutes as transcribed) and the unredacted minutes (the draft minutes prior to any redactions) of those portions of the executive sessions held by the Plymouth Select Board on August 3, 2021, November 4, 2021, and November 30, 2021 pertaining to the Town Manager’s contract. (emphasis in original). The Town responded on May 16, 2022, referring to redacted versions of the records that it previously provided, and stating that it was withholding others. Unsatisfied with the Town’s response, Mr. Serkey 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 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 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

Connor Anderson SPR22/1165 Page 2 June 2, 2022 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 May 16th Response In its May 16, 2022 response, and in a letter to this office and Mr. Serkey on May 26, 2022, the Town cites the Open Meeting Law, along with Exemption (d) of the Public Records Law, and the attorney-client privilege for withholding certain records and redacting others. Open Meeting Law In its May 16th response, the Town contends that “the unredacted minutes of a properly called executive session, together with the Town’s and Attorney’s notes, or other materials used in the preparation of such minutes are exempt from public disclosure. G.L. c. 30A, § 22(f).” In its May 26th letter, the Town also argues that “the Special Counsel redacted a discussion involving a complaint about an individual who was not given notice of the same, i.e. that person was not provided with notice that he/she would be discussed in executive session, pursuant to G.L. c.30A § 21(a)(1).” Please note that G. L. c. 30A, § 18 defines the Open Meeting Law as G.L. c. 30A, §§ 18– 25, inclusive. The Town is advised that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. In a letter to the Town and Mr. Serkey on May 2, 2022, included with his appeal petition, and included with the Town’s response, the AGO addresses the Open Meeting Law issues related to the responsive records, and states the following: Although we find, in general, that the Board does not claim that the executive session purposes are ongoing so as to justify withholding the minutes from the public, and therefore the redactions at issue do not implicate the Open Meeting Law, we do address one redaction made to the November 30 minutes which the Board asserts is authorized by the Open Meeting Law. The November 30 minutes capture a prepared statement the Town Manager read aloud during the executive session. The Board has redacted a portion of the Town Manager’s statement that related to a complaint against a different Town employee. As justification for the redaction, the Board relies on section 21(a)(1) (executive session Purpose 1) of the Open Meeting Law. Based on information provided by the Board, and the fact that the executive session was held pursuant to section 21(a)(2) (executive session Purpose 2) and not pursuant to Purpose 1, we find that the Open Meeting Law does not authorize this redaction. . . . It is our understanding that the Board does not rely on the Open Meeting Law to withhold any documents relevant to the subject matter at issue in this complaint. We take this

Connor Anderson SPR22/1165 Page 3 June 2, 2022 opportunity to remind the Board that, just like executive session minutes, once a valid executive session purpose has been served the “preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under [the Public Records Law] apply to withhold these records, or any portion thereof, from disclosure.” G.L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the AGO and not this office, and in light of the AGO’s May 2nd letter, I decline to address any Open Meeting Law arguments raised in the Town’s response. See G. L. c. 30A, § 23. Accordingly, I will proceed to address the Town’s claims under Exemption (d) of the Public Records Law, and the attorney-client privilege. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). With regard to the draft minutes, the Town argues the following: The draft records Mr. Serkey seeks do not fall under the definition of “public records” as defined in G.L. c.4 § 7. Specifically, Draft Minutes are no longer public records once official minutes are approved by the Select Board. Further, the Town asserts that the Draft Minutes reflect policy analysis rather than collecting factual information. Thus, the Draft Minutes appear not to constitute “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” Based on the Town’s response, I find the Town has not met its burden to withhold or redact responsive records pursuant to Exemption (d). Specifically, regardless of whether the draft minutes constitute policy analysis or factual information, the Town has not demonstrated how the deliberative process that involves the draft minutes remains ongoing.

Connor Anderson SPR22/1165 Page 4 June 2, 2022 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). Under the attorney-client privilege, “the Town maintains that invocation of the attorney- client privilege serves as an entirely legitimate bar to the Request for unredacted minutes.” Further, “the Town asserts that the attorney-client privilege also serves as a bar to production of the Draft Minutes.” Based on the Town’s response, it is unclear how any of the responsive minutes or draft minutes, in their entirety, could constitute attorney-client privileged material. Further, in multiple instances, it is unclear for which redactions the Town is claiming the attorney-client privilege. The Town must clarify these matters, to include providing a detailed description of the portions being redacted under the attorney-client privilege. Conclusion Accordingly, the Town is ordered to provide Mr. Serkey with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Connor Anderson SPR22/1165 Page 5 June 2, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard M. Serkey