Mark Barbadoro v. Boxborough, Town of - Town Clerk (SPR 20222103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2022 SPR22/2103 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. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1513 Determination of the Supervisor of Records (July 15, 2022). In my July 15th determination, I found that the Town did not meet their burden under attorney-client privilege and ordered the Town to provide a further response. On July 28, 2022, the Town provided a response. Unsatisfied with the Town’s response, Mr. Barbadoro petitioned this office and this appeal, SPR22/2103, 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

Rebecca Harris SPR22/2103 Page 2 September 28, 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 July 28th response In its July 28, 2022 response, the Town asserts, “. . . [a]s of the date of the Town’s June 30, 2022 response to your request, the Town had not waived any privilege relative to this confidential legal opinion. Moreover, the Town’s Select Board subsequently confirmed at its July 11, 2022 meeting that the Town was not waiving any attorney client privilege it held in connection with said legal opinion.” Citing Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2017), the Town posits, “[a]fter careful review by the Town following review of the Division’s July 15, 2022 Determination, please be advised that the legal opinion that you requested to be provided a copy of constitutes privileged information between a Town official and Town Counsel for the purpose of obtaining legal advice, for which the attorney-client privilege has not been waived, and therefore, such record may be withheld pursuant to the attorney-client privilege.” The Town provided a privilege log in accordance with G. L. c. 66, § 10A(a). 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

Rebecca Harris SPR22/2103 Page 3 September 28, 2022 being claimed.” G. L. c. 66, § 10A(a). Based on the Town’s response, I find the Town has satisfied its burden in responding to this request. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Mark Barbadoro Joseph S. Fair, Esq.