George H. Harris v. Wayland, Town of (SPR 20230172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2023 SPR23/0172 Trudy Reid Public Records Access Officer Acting Town Manager Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Ms. Reid: 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 appeal, Attorney Harris advised, “I am withdrawing my request for executive session minutes for October 28, 2019 and September 21, 2020, as they contain no redactions.” Attorney Harris requested unredacted minutes for “… February 1, 2021; July 26, 2021; and October 4, 2021.” Prior Appeals The requested records were the subject of prior appeals. See SPR22/1252 Determination of the Supervisor of Records (June 14, 2022); SPR22/1964 Determination of the Supervisor of Records (September 8, 2022) and SPR22/2141 Determinations of the Supervisor of Records (September 30, 2022, November 14, 2022 and January 10, 2023). In my January 10, 2023 determination, I found that the Town must clarify whether the communications satisfied the first prong of Suffolk. Particularly, the Town must clarify whether 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. The Town responded on January 25, 2023. Unsatisfied with the response, Attorney Harris petitioned this office and this appeal, SPR23/0172, was opened as a result. 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

Trudy Reid SPR23/0172 Page 2 February 21, 2023 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. The Town’s January 25h response In its response, the Town cited Exemption (d) of the Public Records Law, attorney-client privilege and further advised that there is litigation pending in Land Court. 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 Elec. 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). In its January 25th response and in response to the Supervisor’s order, the Town stated,

Trudy Reid SPR23/0172 Page 3 February 21, 2023 ... the minimal redactions made relate directly to information communicated between Town officials and Town Counsel used during the course of the Town’s search for legal advice from its attorneys on a legal matter. As such, the Town submits that the records at issue satisfy the first prong because the Town of Wayland Select Board, by and through its former Town Administrator, Louise Miller, conveyed confidential legal advice to and from Town Counsel, in their capacity as attorneys, in executive session meetings for the purpose of defending and/or deciding whether to resolve pending litigation involving the Town in the matter of Duane Galbi v. Louise Miller and the Town of Wayland, Middlesex Superior Court Docket No. 1981 CV 02796. The redactions must be read within their context of Town Counsel and Town Officials’ confidential relationship of discussing and relaying information regarding settlement and litigation strategy for the benefit of the Town’s litigation position and defense of the case; the minutes reflect authorized strategies and preferred conditions relayed from the Board exclusively to Town Counsel in the context of a confidential attorney-client relationship. In its August 17th response, the Town asserted, “... such communications were made in confidence, and the attorney-client privilege has not been waived.” Further, the Town previously provided a privilege log. See SPR22/2141. Based upon the Town’s clarification, I find that the Town has met its burden to withhold the requested records pursuant to the attorney-client privilege. Consequently, I decline to opine on the applicability of Exemption (d), supporting non-disclosure of the requested records. Conclusion Accordingly, I will 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.