Richard Serkey v. Plymouth, Town of - Town Manager (SPR 20221425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6, 2022 SPR22/1425 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). Previous Appeal This request was the subject of a previous appeal. See SPR22/1425 Determination of the Supervisor of Records (June 2, 2022). In my June 2nd determination, I declined to address the Town’s Open Meeting Law arguments, found the Town had not met its burden under Exemption (d) of the Public Records Law, and ordered the Town to clarify its claims under the attorney- client privilege. Subsequently, the Town responded to Mr. Serkey on June 16, 2022. Unsatisfied with the Town’s response, Mr. Serkey further 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). 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 SPR22/1425 Page 2 July 6, 2022 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. Serkey states “I have no interest in seeing the material redacted from the minutes pertaining to ‘a complaint made about a specific public official,’ so I waive so much of my appeal that pertains to the same.” In addition, he states “I obviously have no interest in seeing the material redacted from the minutes pertaining to collective bargaining.” Accordingly, I decline to address the Town’s arguments concerning redactions of the complaint made against a specific public official, and I likewise decline to address the Town’s arguments concerning redactions of information pertaining to collective bargaining. In his appeal petition, Mr. Serkey also requests this office “to determine . . . whether the unredacted minutes are a faithful reflection of the draft minutes or are instead a wholesale reconstruction the draft minutes.” Please be advised that, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. See G. L. c. 66, § 10A(a). Accordingly, it is not within the scope of this office to address whether the final version of meeting minutes is a faithful reflection of the draft minutes. The Town’s June 16th Response In its previous responses, the Town provided Mr. Serkey with meeting minutes in redacted form. In its June 16, 2022 response, the Town states that it has withheld draft meeting minutes pursuant to Exemption (d) of the Public Records Law, and that it has redacted certain meeting minutes pursuant to the attorney-client privilege. The Town reiterates its arguments in a letter to this office and Mr. Serkey on June 30, 2022. 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).

Connor Anderson SPR22/1425 Page 3 July 6, 2022 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. Prot.ection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Under Exemption (d), the Town argues that “in applying the deliberative privilege to drafts of documents, the Federal Courts have generally held that drafts are protected by the deliberative process privilege.” The Town goes on to argue the following: In addition, requiring municipalities to release drafts would do irreparable damage to the ability of municipalities to effectively govern and fulfill their responsibilities to their citizens across the Commonwealth. Drafts are not policy and their disclosure would discourage candid internal discussions in the future and chill internal debate, thereby undermining the decision-making process. The decision-making process is precisely what the privilege is designed to protect. As a result, the Board asserts that any minutes in their draft form are protected from disclosure, particularly where there is issued a finalized document. Based on the Town’s response, I find the Town has not met its burden to withhold the draft minutes in their entirety pursuant to Exemption (d). In particular, the Town has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). 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

Connor Anderson SPR22/1425 Page 4 July 6, 2022 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). In its June 16th response, the Town provides a privilege log indicating the dates, the names of the attorneys who delivered legal advice, the recipient, and a description of each redaction made under the attorney-client privilege. The Town provides the following additional information: The Log identifies five (5) total redactions based on communications made in the course of the attorney-client relationship. Specifically, the Board has redacted those portions of the meeting minutes that contain legal advice delivered to the Board by Town Counsel as well as Special Town Counsel, in connection with the Town Manager’s contracts. In his appeal petition and subsequent correspondence, Mr. Serkey requests that this office conduct an in camera inspection to determine “whether the redactions in the redacted minutes are based on a bona fide claim of attorney-client privilege.” Please be advised that, as noted above, 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.” G. L. c. 66, § 10A(a). Accordingly, where the Town has provided a detailed index as required by G. L. c. 66, § 10A(a) and Suffolk, I find the Town has met its burden to redact the specific information described in its June 16th privilege log pursuant to the attorney-client privilege. Conclusion As described above, while the Town has met its burden to redact specific information under the attorney-client privilege, the Town has not met its burden to withhold the draft meeting minutes in their entirety. Accordingly, the Town is ordered to review the draft meeting minutes, redact where necessary and provide the responsive records to Mr. Serkey, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any

Connor Anderson SPR22/1425 Page 5 July 6, 2022 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard M. Serkey