Michael Curtin v. East Bridgewater Town Administrator (SPR 20231476)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2023 SPR23/1476 Charlie Seelig Town Administrator Town of East Bridgewater 175 Central Street East Bridgewater, MA 02333 Dear Mr. Seelig: I have received the petition of Michael Curtin, of the East Bridgewater Patrolman’s Association, appealing the response of the Town of East Bridgewater (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 1, 2023, Mr. Curtin requested “all reports, notes, recordings and emails pertaining to the investigation on the complaint filed by [a named attorney] on behalf of [a named individual] on 01/19/2023.” The Town responded in a letter dated June 16, 2023, denying the request. Unsatisfied with the Town’s response, Mr. Curtin appealed, and this case 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. 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. 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 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

Charlie Seelig SPR23/1476 Page 2 July 10, 2023 custodian must provide the responsive records. The Town’s June 16th Response In its June 16, 2023 response, the Town states that “this matter is being investigated by a third-party investigator. As such, the Town does not have any reports, notes, and or recordings in its possession custody or control.” The Town also indicates that it is withholding responsive emails pursuant to the attorney-client privilege. Agency Relationship Please note 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). 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. Based on the Town’s June 16th response, it is unclear whether there is an agency relationship between the Town and the “third-party investigator” described in the Town’s June 16th response. As such, I find the Town must provide additional information regarding the relationship between it and the “third-party investigator,” and the scope of any such relationship in order to determine whether 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. The Town is further advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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; 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).

Charlie Seelig SPR23/1476 Page 3 July 10, 2023 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). In its June 16th response, under the attorney-client privilege, the Town states that “the few emails that the Town has had on this matter have been to the Town’s attorneys and are protected from disclosure under the attorney-client and/or work product privilege.” Based on its June 16th response, the Town has not met its burden to withhold records under the attorney-client privilege. Specifically, in accordance with G. L. c. 66, § 10A(a), the Town must provide “a detailed description of the record[s], including the names of the author and recipients, the date, the substance of such record[s], and the grounds upon which the attorney-client privilege is being claimed.” Further, the Town must clarify whether the communications were made in confidence and that the privilege as to the communications has not been waived. Conclusion Accordingly, the Town is ordered to provide Mr. Curtin with a response to his 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 the response to this office at pre@sec.state.ma.us.

Charlie Seelig SPR23/1476 Page 4 July 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Michael Curtin