Philip L. Cohen v. Wayland, Town of (SPR 20231135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2023 SPR23/1135 Trudy Reid Town Clerk Records Access Officer Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Ms. Reid: I have received the petition of Philip L. Cohen appealing the response of the Town of Wayland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 9, 2023, Mr. Cohen requested the following records relating to a specific litigation involving the Town: [1] ... all public records constituting or containing information concerning any and all solicitations or offers delivered, sent, made or received to or by any agent, agency, attorney, board, department, employee, office, officer, or official now or formerly employed by or affiliated with the Town for legal representation made by any attorney or law firm now representing the Town of Wayland in that litigation. [2] ... all public records constituting any executed or signed agreement or contract for the rendition and/or performance of any legal services or legal representation for the Town by any attorney or law firm now representing the Town in that litigation. This request includes, without limitation, all retainer agreements, contingent fee agreements and/or any other agreements for authorizing legal representation in the litigation. [3] ... all public records constituting any billings, invoices, statements, or requests for payment, in whole or part, made or submitted to the Town for legal services, costs and/or expenses charged, incurred or to be incurred to or by the Town in connection with that litigation. [4] ... all public records constituting any payment, in whole or part, made by the Town 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 SPR23/1135 Page 2 June 14, 2023 for legal services, costs and Wayland, Massachusetts in connection with that litigation. The Town responded on May 5, 2023. Unsatisfied with the response, Mr. Cohen petitioned this office and this appeal, SPR23/1135, was opened as a result. While this appeal was pending, the Town proved a supplemental response on June 12, 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(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). The Town’s May 5th and June 12th Responses In its May 5, 2023 response, the Town provided 3 documents: “press release, the introductory proposal and the originally filed PFAS complaint.” The Town advised, “[a]ll other documentation and communications are exempt per the 2007 (Suffolk Construction v. Division of Capital Asset Management Division) by the Supreme Judicial Court.” In the Town’s June 12, 2023 response, the Town advised, “[g]iven the high profile nature of this case and the elevated stakes, the attorney representing the Town in this case, ...has respectfully requested that said documents remain considered exempt under the attorney/client privilege classification.” 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

Trudy Reid SPR23/1135 Page 3 June 14, 2023 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). Current appeal In his appeal, Mr. Cohen references the appeal pending in United States District Court, for the District of South Carolina and attaches a copy of the complaint in his appeal petition. See Town of Wayland Massachusetts v. 3M Company (f/k/a Minnesota Mining and Manufacturing, Co.), United States District Court, for the District of South Carolina, Docket Nos. MDL No. 2873 Master Docket No. 2:18-mn-2873. Mr. Cohen advises that, “[t]he instant appeal seeks, among other documents, the actual contingent fee agreement between the Town of Wayland and the law firm or firms representing Wayland in ongoing civil litigation. The burden of establishing the application of the attorney-client privilege is on the Town.” In a conversation between a Town representative and an attorney of the Public Records Division, the Town advised that there is pending litigation as follows: Town of Wayland Massachusetts v. 3M Company (f/k/a Minnesota Mining and Manufacturing, Co.), United States District Court, for the District of South Carolina, Docket Nos. MDL No. 2873 Master Docket No. 2:18-mn-2873 and that that the requested records are related to the proceedings. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Although the Town advised that the requested records relate to the pending federal litigation, it is unclear if all of the requested records directly relate to the litigation. The Town must explain how the requested “contingent fee agreement. . .” relates to the litigation. The Town must clarify.

Trudy Reid SPR23/1135 Page 4 June 14, 2023 Conclusion Accordingly, the Town is ordered to provide Mr. Cohen 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 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Cohen 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 L. Cohen