Donald C. Keavany v. Hopedale, Town of (SPR 20231112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2023 SPR23/1112 Lisa M. Pedroli Town Clerk Town of Hopedale 78 Hopedale Street Hopedale, MA 01747 Dear Ms. Pedroli: I have received the petition of Attorney Donald C. Keavany, Jr., of Christopher, Hays, Wojcik & Mavricos, LLP, appealing the response of the Town of Hopedale (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 28, 2023, Attorney Andrew P. DiCenzo of Christopher, Hays, Wojcik & Mavricos, LLP, requested nineteen categories of records relating to the Town and multiple named law firms. The Town responded on May 12, 2023, providing some responsive records and withholding others. Unsatisfied with the Town’s response, Attorney Keavany appealed, and this case was opened as a result. While this appeal was pending, the Town provided a supplemental response, including additional records, on May 26, 2023. In a letter to this office on June 5, 2023, Attorney DiCenzo reiterates numerous arguments concerning the appeal. 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. Att’y 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

Lisa M. Pedroli SPR23/1112 Page 2 June 9, 2023 The Town’s May 12th and May 26th Responses In its May 12, 2023 response, the Town provides numerous records in redacted form. In the Town’s May 26, 2023 response, an attorney for the Town provides additional records in redacted form, and states the following: Since A&K provided the services, I asked them to review their invoices and make redactions where they felt exemptions were appropriate, including the Attorney- Client Privilege, deliberative process (Exemption (d)), and executive session material and litigation strategy (Exemption (a) and G.L. c.30A, §21(a)(3)). ... Both A&K and relevant Town staff and officials reviewed your requests and have provided records, redacted or unredacted, to your requests – Town staff records were provided on May 12 with our response. Open Meeting Law The Town’s response, along with Attorney Keavany’s appeal petition, and Attorney DiCenzo’s subsequent letter, raise several issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a determination on the status of any executive session minutes. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC

Lisa M. Pedroli SPR23/1112 Page 3 June 9, 2023 concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Town is advised that under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In this case, the Town’s response did not contain the specificity required in a denial of access to public records. The Town merely cites Exemption (d) without any explanation of the applicability of the exemption to the specific responsive records or redacted information. The Town must clarify this. 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). Based on the Town’s response, it is unclear which specific records have been redacted or withheld pursuant to the attorney-client privilege. Specifically, the Town must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-

Lisa M. Pedroli SPR23/1112 Page 4 June 9, 2023 client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Town must clarify whether the communications were made in confidence and that the privilege as to the communications has not been waived. Agency Relationship Please be advised that 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). In its May 26th response, an attorney for the Town states the following: To the extent A&K, or KP Law as Town Counsel, have correspondence or written communications to or from Town employees or officials, those are certainly “public records” and subject to production pursuant to records requests, but also subject to any applicable exemptions. However, to the extent A&K or KP Law have records that relate to the Town of Hopedale but were never provided to the Town, those are not subject to your requests. Neither are any records involving communications between A&K and Lurie Friedman, LLP, if they were not also sent to any Town official or employee. The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. In this case, it is unclear whether the records for the Town’s agents were searched. As such, I find that the Town must provide additional information detailing their search in order to determine if the Town has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the Town is ordered to provide Attorney Keavany with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this

Lisa M. Pedroli SPR23/1112 Page 5 June 9, 2023 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Donald C. Keavany, Jr., Esq. Andrew P. DiCenzo, Esq. Brian W. Riley, Esq.