George H. Harris v. Wayland, Town of - Office of the Board of Selectmen (SPR 20221964)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2022 SPR22/1964 Stephen Crane Acting Town Manager Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Mr. Crane: I have received the petition of George Harris, Esq. appealing the response of the Town of Wayland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 2, 2022, Attorney Harris requested “. . . unredacted copies of the following Select Board executive session minutes pertaining to the lawsuit known as Duane Galbi v. Town of Wayland, now resolved: Meetings held on October 28, 2019; September 21, 2020; February 1, 2021; July 26, 2021; October 4, 2021; December 13, 2021.” In his current appeal, Attorney Harris advises, “I am withdrawing my request for executive session minutes for October 28, 2019 and September 21, 2020, as they contain no redactions.” Attorney Harris has now requested unredacted minutes for “… February 1, 2021; July 26, 2021; and October 4, 2021.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1252 Determination of the Supervisor of Records (June 14, 2022). On August 17, 2022, the Town responded. Unsatisfied with the Town’s response, Attorney Harris petitioned this office and this appeal, SPR22/1964, 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

Stephen Crane SPR22/1964 Page 2 September 8, 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. 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. The Town’s August 17th response In its August 17, 2022 response, the Town cites attorney-client privilege in support of the redactions to the requested minutes. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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; 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. The indices shall include 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, § l0A(a). In its response, the Town stated, “… some of the information contained in the executive session meeting minutes would still be withheld from disclosure because it conveyed information protected by the attorney-client privilege. Suffolk Construction Co., supra. More specifically, the minutes contain information received by Town officials from Town Counsel in the attorneys’ capacity as such, discussions as to instructions to Town Counsel, such communications were made in confidence, and the attorney-client privilege has not been waived. Id. Accordingly, the

Stephen Crane SPR22/1964 Page 3 September 8, 2022 Board has voted to release the executive session minutes subject to the redaction of information regarding the Galbi litigation protected by the attorney-client privilege …” 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, § l0A(a). Based on the foregoing, I find the Town must provide a privilege log in accordance with G. L. c. 66, § l0A(a). 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. Conclusion Accordingly, the Town is ordered to provide Attorney Harris with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: George Harris, Esq. Brian Riley, Esq.