Mark Barbadoro v. Boxborough, Town of - Town Clerk (SPR 20221513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2022 SPR22/1513 Rebecca Harris Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Ms. Harris: I have received the petition of Mark Barbadoro appealing the response of the Town of Boxborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 17, 2022, Mr. Barbadoro requested a copy of the legal advice pertaining to a specified complaint. The Town provided a response on June 30, 2022 denying access to the responsive record pursuant to the common law attorney-client privilege. Unsatisfied with the Town’s response, Mr. Barbadoro petitioned this office and this appeal, SPR22/1513, 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 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

Rebecca Harris SPR22/1513 Page 2 July 15, 2022 custodian must provide the responsive records. The Town’s June 30th response In its June 30, 2022 response, the Town asserts, “. . . the document you have requested was a confidential communication between the Town and Town Counsel reflecting advice that was expressly requested in connection with your complaint. Regardless of whether or not your underlying complaint against [a named individual] has or has not been resolved, the attorney- client privilege continues to remain in full force and effect. As such, the legal opinion you have requested is being withheld pursuant to the attorney-client privilege.” Citing Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2017), the Town posits, “[s]ince the document you have requested was such a confidential communication issued for the purpose of providing legal advice and assistance, the May 17, 2022 legal opinion that was emailed by Town Counsel to [a named Selectman] regarding the complaint that you had filed against [a named individual] is being withheld pursuant to such privilege.” 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, 449 Mass. at 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). Based on the Town’s response, although it states that the document is a confidential communication issued for the purpose of providing legal advice, it is unclear if the privilege has been waived. I find the Town must also provide a detailed description of the record in accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Mr. Barbadoro with a response to the

Rebecca Harris SPR22/1513 Page 3 July 15, 2022 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, Manza Arthur Supervisor of Records cc: Mark Barbadoro