Victor Sage v. Leicester, Town of (SPR 20230450)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2023 SPR23/0450 Chris Vitale Assistant Town Administrator Town of Leicester 3 Washburn Square Leicester, MA 01524 Dear Mr. Vitale: I have received the petition of Victor Sage appealing the response of the Town of Leicester (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2023, Mr. Sage requested “…copies of invoices from the town counsel showing records of dates of service and services rendered for 6/1/22 to 12/13/22.” The Town provided a response on February 27, 2023. Unsatisfied with the response, Mr. Sage petitioned this office and this appeal, SPR23/0450, 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. The Town’s February 27th response In its February 27, 2023 response, the Town claimed attorney-client privilege to withhold 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

Chris Vitale SPR23/0450 Page 2 March 21, 2023 a portion of 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 (2017); 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 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 “[t]he documentation provided was the cover page of the monthly invoices. The other invoice pages include details that are attorney-client privilege.” 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. The Town has not explained 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. Further, the Town has not stated whether the communications were made in confidence or whether the privilege as to these communications has been waived. Additionally, 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), Conclusion Accordingly, the Town is ordered to provide Mr. Sage 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. Sage may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Chris Vitale SPR23/0450 Page 3 March 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Victor Sage