George H. Harris v. Wayland, Town of - Office of the Board of Selectmen (SPR 20222141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2022 SPR22/2141 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) and SPR22/1964 Determination of the Supervisor of Records (September 8, 2022). In my September 8th determination, I requested that the Town provide a privilege log in support of the attorney client privilege redactions. The Town responded on September 19, 2022. Unsatisfied with the Town’s response, Attorney Harris petitioned this office and this appeal, SPR22/2141, 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 SPR22/2141 Page 2 September 30, 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. The Town’s September 19th response In its September 19, 2022 response, the Town provided the requested privilege log in support of the attorney client privilege redactions to the requested minutes. Current appeal In his appeal, Attorney Harris asserts, “I believe certain information is missing from the log, specifically a detailed description of the record, the date of the record, and the identity of the attorney.… The date provided is the date of the executive session minutes, not the date of the actual record or communication between the attorney and client. Furthermore, the name of the attorney serving as Town Counsel is not identified.” 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 Electric 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). 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

Stephen Crane SPR22/2141 Page 3 September 30, 2022 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). Upon review, I find that the Town has satisfied it burden in providing a privilege log. Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Harris is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: George Harris, Esq. Devan C. Braun, Esq.