Russell Williston v. Lancaster, Town of - Town Administrator (SPR 20222473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2473 Kate Hodges Town Administrator Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Hodges: I have received the petition of Russ Williston appealing the response of the Town of Lancaster (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2022, Mr. Williston requested, “… correspondence between the town and town counsel about issues with the 2022 annual town election warrant.” On October 31, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Williston petitioned this office and this appeal, SPR22/2473, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Kate Hodges SPR22/2473 Page 2 November 16, 2022 The Town’s October 31st response In its October 31, 2022 response, the Town indicated that it was withholding four responsive records under the attorney-client privilege. 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 (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 being claimed.” G. L. c. 66, § 10A(a). In the Town’s October 31st response it stated, “…the Town has identified four emails responsive to your request. The emails are considered attorney-client communications and protected from release.” The Town explained how the responsive records fell under the attorney-client privilege stating the following: At all relevant times, Miyares and Harrington represented the Town as its Town Counsel. Attorneys working for Miyares and Harrington on this matter include Ivria Fried, Christopher Heep, Donna Brewer, and Alexandra Rubin. Furthermore, the communications at issue were either sent to Town Counsel by Town staff during the Town’s search for legal advice relative to the 2022 annual election warrant or by Town Counsel to Town staff in response to the Town’s request for such advice. The communications were made in confidence between the Town and its counsel. The privilege has also not been waived by sharing the emails with anyone not within the umbrella of the attorney-client relationship. As such, the Town may properly withhold the records. The Town concluded by providing a privilege log of the communications withheld.

Kate Hodges SPR22/2473 Page 3 November 16, 2022 Where the Town indicates that the responsive records regarding this request are confidential communications between Town Counsel and the Town’s employees, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Town has met its burden to withhold the responsive records under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Russ Williston