William A. Moschella, Esq. v. Rowley, Town of - Town Clerk (SPR 20221574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2022 SPR22/1574 Catherine M. McClenaghan Town Clerk Town of Rowley 139 Main Street P.O. Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Attorney William A. Moschella appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2022, Attorney Moschella requested a copy of records relating to “the Town’s Zoning Board of Appeals (ZBA) Case No. 22.05. Also any material held individually by any board members not covered by any exemptions of the public records law subject to disclosure relating to the aforementioned appeal.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1171 Determination of the Supervisor of Records (May 31, 2022). In my May 31st determination, I ordered the Town to clarify whether it possesses additional responsive records. Subsequently, the Town responded on June 13, 2022, providing additional responsive records, and citing the attorney-client privilege for withholding others. Unsatisfied with the Town’s response, Attorney Moschella 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

Catherine M. McClenaghan SPR22/1574 Page 2 July 25, 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, Attorney Moschella contends that “material is still missing” from the records provided by the Town. Specifically, he argues that “several colored aerial google earth photographs,” along with “records submitted . . . by Chickadee Hill Farm Service,” and “information concerning . . . farming prior to 1985 submitted by the former owner” are missing from the records provided. Attorney Moschella reiterated his arguments in multiple emails to this office subsequent to the opening of this appeal. The Town’s Responses In its June 13, 2022 response, the Town provides additional records responsive to Attorney Moschella’s request, and cites the attorney-client privilege for withholding others. 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 (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 13th response, the Town identifies four sets of emails being withheld pursuant to the attorney-client privilege. The Town states that the emails “constituted communications between Town Counsel . . . and one or more Town officials requesting, constituting or concerning legal advice.” In addition, the Town provides a detailed list including the names of

Catherine M. McClenaghan SPR22/1574 Page 3 July 25, 2022 the authors, recipients, and dates of the withheld emails. Although the Town has provided the names of the authors and recipients of each email, along with the dates, and an explanation of the grounds for claiming the privilege, the Town has not provided a description of the substance of each record. Consequently, the Town must provide Attorney Moschella with a description of the substance of each email being withheld pursuant to the attorney-client privilege, as required under G. L. c. 66, § 10A(a). Records in Existence Please be advised that, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In its June 13th response, the Town states that “to the best of [the Town Clerk’s] knowledge, having queried all Town department heads and all members of the ZBA, [Attorney Moschella has] now been furnished with all responsive, non-privileged documents that are in the possession or subject to the control of the Town.” In a letter to this office and Attorney Moschella on July 12, 2022, Town Counsel reiterates that the Town has no additional responsive records, and notes the page numbers of records already produced which contain some of the information Attorney Moschella seeks in his appeal. In an additional letter to this office and Attorney Moschella on July 19, 2022, in response to correspondence from Attorney Moschella, Town Counsel again reiterates that the Town possesses no additional responsive records, and notes additional page numbers from the previous productions containing information that Attorney Moschella seeks. Where the Town has confirmed that it does not possess additional records responsive to Attorney Moschella’s request, I find the Town has met its burden to provide the responsive records that are in its possession, custody, or control. Conclusion Accordingly, the Town is ordered to provide Attorney Moschella with a response regarding its attorney-client privilege claim, 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.

Catherine M. McClenaghan SPR22/1574 Page 4 July 25, 2022 Sincerely, Manza Arthur Supervisor of Records cc: William A. Moschella, Esq. Thomas A. Mullen, Esq.