Benjamin C. Guthrie v. Falmouth, Town of - Town Clerk (SPR 20231196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 16, 2023 SPR23/1196 Maura E. O’Keefe, Esq. Town Counsel Town of Falmouth 157 Locust Street Falmouth, MA 02540 Dear Attorney O’Keefe: I have received the petition of Sergeant Benjamin C. Guthrie appealing the response of the Town of Falmouth (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 13, 2023, Sergeant Guthrie requested “[a]ny and all documents (paper or electronic), video or audio recordings, and all correspondence reflecting, evidencing, referencing or constituting a complaint regarding allegations of untruthfulness perpetrated by [named] police [officer].” Previous appeal This request was the subject of a previous appeal. See SPR23/0849 Determination of the Supervisor of Records (May 10, 2023). The Town provided a response on May 24, 2023. Unsatisfied with the response, Sergeant Guthrie petitioned this office and this appeal, SPR23/1196, 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 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

Maura O’Keefe, Esq. SPR23/1196 Page 2 June 16, 2023 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 May 24th response In its May 24, 2023 response, the Town claimed attorney-client privilege for redactions made in the responsive records. The Town stated the following: Here, you will see that there are communications that were not redacted. Those redactions pertain to communications between the attorney-investigator in his capacity as an investigator and Town staff. Those communications are not privileged under the Suffolk test and, therefore, are not redacted. You will also see communications by and between 1) the Town’s Interim Manager and [specified individual], who serves as outside counsel to the Town and also conducted the underlying investigation, and 2) the Town’s Interim Manager and Town Counsel. These communications have been redacted because they consist of communications in which the Interim Town Manager sought out legal advice separate and apart from the investigation, those communications were made by the Interim Town Manager with the expectation that the communications were confidential, and this privilege has not been waived by any party to the communications. Only those portions of the communications that pertain to the legal advice that was sought and given were redacted. 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.

Maura O’Keefe, Esq. SPR23/1196 Page 3 June 16, 2023 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). Current appeal In his appeal, Sergeant Guthrie states the following: [Town Counsel] has provided me with multiple emails that are nearly completely redacted and without the attachments. There also appears to be other correspondences missing from the Town’s response. On page 28 of the 41 page response, there is an email dated January 20, 2023 from Acting Town Manager . . . to the investigations expressing gratitude for ‘both’ responses yet there is only one email attached. Town Counsel . . . continues to represent as the Town’s attorney when responding to the records request. The law firm, . . . to include [two specified individuals], were hired by the town to be investigators not attorneys… It is my belief that the Town cannot hire an attorney as an investigator for an internal investigation and then claim a statutory exemption for communication and investigative materials (ie. notes, audio/video recordings, findings, etc,) created while performing those duties. Although the Town has satisfied the requirements articulated in Suffolk, I find the Town has not provided a privilege log that includes 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). Further, based on Sergeant Guthrie’s appeal, it is unclear if the Town possesses additional records responsive to the above request. Specifically, the Town must clarify whether it possesses the attachments to the emails provided as well as the missing correspondences referenced in the appeal. 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). Conclusion Accordingly, the Town is ordered to provide Sergeant Guthrie 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.

Maura O’Keefe, Esq. SPR23/1196 Page 4 June 16, 2023 Sergeant Guthrie 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: Sergeant Benjamin C. Guthrie