Philip Johenning v. Milton, Town of - Town Clerk (SPR 20230132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2023 SPR23/0132 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].” Previous appeal This request was the subject of a previous appeal. See SPR22/2406 Determination of the Supervisor of Records (November 3, 2022). The Town provided a response on November 18, 2022. Unsatisfied with the Town’s response, Mr. Johenning petitioned this office and this appeal, SPR23/0132, 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. 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 SPR23/0132 Page 2 February 3, 2023 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 November 18th Response In its November 18, 2022 response, the Town claimed attorney-client privilege to withhold the requested records. 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 (2007); 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. 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 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). In its response, the Town asserted that “[t]hese emails are withheld for two reasons. First, the emails are not public record as they are in possession of [the Town counsel’s] office rather than the Town (with one exception noted below.) Second, to the extent that these emails may be public records, while most contained requests to schedule a time to discuss the case, some related to the substance of the case and settlement. These emails 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 your request.” The Town further stated that “[t]he Town has not waived its right to assert the attorney-client privilege with respect to these communications…[.]”

Susan M. Galvin SPR23/0132 Page 3 February 3, 2023 Based on the Town’s response, it is unclear how all the communications constitute legal advice that can be withheld under the privilege. Further, where the Town has not provided a privilege log with 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 pursuant to G. L. c. 66, § 10A(a), I find the Town has not met its burden to withhold the responsive records under the attorney-client privilege. Please note, whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. See Office of the Secretary of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law; see also G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Conclusion Accordingly, the Town is ordered to provide Mr. Johenning with a response to his request 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 the 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