Philip Johenning v. Milton, Town of - Town Clerk (SPR 20222406)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2022 SPR22/2406 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Philip Johenning appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2022, Mr. Johenning requested, “…a copy of itemized bill summaries, invoices, requests for payment documents, legal documents, insurance claims made, records of any discussion of any proposed settlement between the Town and its insurer or with the plaintiff, any correspondence related to those insurance claims and other records, e-mail, traditional mail, notes from telephone or other meetings, etc., related to [a specified case].” The Town provided a response on July 26, 2022. Unsatisfied with the response, Mr. Johenning petitioned this office and this appeal, SPR22/2406, 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. 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

Susan M. Galvin SPR22/2406 Page 2 November 3, 2022 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 26th response In its July 26, 2022 response, the Town asserted that the requester did not meet the “reasonable description” requirement. See Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. l784CV02087, at 2 (January 23, 2019). The Town also withheld a portion of the records requested under attorney-client privilege. In Mr. Johenning’s July 18th request, he stated that he was seeking “…any correspondence related to those insurance claims and other records, e-mail, traditional mail, notes from telephone or other meetings, etc., related to [a specified case].” In its response, the Town asserted that “[t]he use of the word ‘related’ in [Mr. Johenning’s] request calls upon non- lawyer administrative personnel to interpret the scope of [his] request, and then made fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested.” Based on the foregoing, I find it is unclear whether the Town possesses records responsive to the request. 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). Please be advised, records access officers 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). A municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably. G. L. c. 66, § 10(a)(vii). The Town must clarify this matter. 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., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 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).

Susan M. Galvin SPR22/2406 Page 3 November 3, 2022 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). In its response, the Town stated that “…to the extent that these emails may be public records, they are protected by the attorney-client privilege or the work product doctrine, as they constitute communications between counsel for the purpose of providing legal advice to the Town and Town officials regarding the lawsuit referenced in [the] request.” Based upon the Town’s response, I find the Town has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. Specifically, it is unclear whether the privilege to the communications has been waived. Also, the Town did not provide a detailed description of the email records in accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Mr. Johenning with a response to the 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. Mr. Johenning may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Philip Johenning