Donald C. Keavany v. Hopedale, Town of (SPR 20231495)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 13, 2023 SPR23/1495 Lisa M. Pedroli Town Clerk Town of Hopedale 78 Hopedale Street Hopedale, MA 01747 Dear Ms. Pedroli: I have received the petition of Attorney Andrew P. DiCenzo, 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 DiCenzo, requested nineteen categories of records relating to the Town and multiple named law firms. Previous Appeal This request was the subject of a previous appeal. See SPR23/1112 Determination of the Supervisor of Records (June 9, 2023). In my June 9th determination, I ordered the Town to clarify its claims under Exemption (d) of the Public Records Law, its claims of attorney-client privilege, and whether the records of the Town’s agents were searched. Subsequently, the Town responded on June 26, 2023. Unsatisfied with the Town’s response, Attorney DiCenzo further 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. 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 SPR23/1495 Page 2 July 13, 2023 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. The Town’s June 26th and July 3rd Responses In its June 26, 2023 response, and in a letter to this office and Attorney DiCenzo on July 3, 2023, the Town argues that the records at issue are involved in active litigation, cites the attorney-client privilege for redacting responsive records, argues that a specified law firm is not a public agent of the Town. 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. In its June 26th response, the Town cites four pending active law suits involving the Town and Attorney DiCenzo’s client. See Town of Hopedale v. Jon Delli Priscoli, Trustee et al. (Grafton & Upton Railroad Co.), Mass. Land Court. No. 20 MISC 000467; Grafton & Upton Railroad Co., et al. v. Town of Hopedale, et al., Case No. 4:22-cv-40080 (D. Massachusetts); Grafton & Upton Railroad Co., et al. v. Town of Hopedale, et al., Docket No. 23-1404; and Grafton & Upton Railroad Co., Surface Transportation Board, Case No. STB FD 36696. The Town argues the following: [T]he nature of [Attorney DiCenzo’s] records request dated April 28, 2023 make it clear that he is only seeking these records in order to obtain information to use against the Town in the active litigation. The request centers around Special Counsel Anderson Krieger, who is paying their invoices (Anderson Krieger is providing legal services to the Town exclusively in regard to the four pending cases), fee agreements and communications between the Town and Kaplan Kirsch & Rockwell (the law firm representing the Town before the Surface Transportation Board), and donations to the Town regarding related legal costs. It is plain, therefore, that the subject request and appeal are solely related to the four active litigation matters. As such, this appeal falls directly within the language of 950 CMR 32.08(2)(b), Where the records at issue in this request involve issues relating to billing and payment for legal fees and services, it is unclear how such records would constitute “the subjects of

Lisa M. Pedroli SPR23/1495 Page 3 July 13, 2023 disputes in active litigation” as prescribed under 950 C.M.R. 32.08 (2)(b)(1). Accordingly, I will proceed to address the other issues raised in this appeal. 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). In its June 26th response, the Town includes redacted invoices and provides the following explanation: The enclosed copies of Anderson Krieger invoices contain numerous redactions, all of which are based upon the attorney/client relationship between the firm and the Town of Hopedale. Many of the entries describe communications between various attorneys at Anderson Krieger and Town officials – ... chair of the Select Board, ... chair of the Water & Sewer Commission, ... chair of the Conservation Commission, and ... the former Town Administrator (she was succeeded by [the] Interim Town Administrator ... also referenced). Each and every redacted entry concerns attorneys at Anderson Krieger working on the above referenced active litigation matters or communicating with Town officials or others about the progress and issues regarding said litigation. . . . [T]he vast majority of the invoice entries concern either interoffice communications between Anderson Kreiger attorneys or communications with other individuals that are neither Town employees nor officers. For reasons discussed below, such communications are not public records. . . . [T]he Town has not waived any aspect of the Attorney/Client Privilege with regard to its relationship with and engagement with Anderson Krieger, and the privilege can only be waived by the client. In addition ... Attorneys Lurie and

Lisa M. Pedroli SPR23/1495 Page 4 July 13, 2023 Racer are legal counsel to a group of Hopedale residents that have taken an active role in the litigation ... and Attorneys Lurie and Racer have appeared on said residents’ behalf in the pending federal District Court and First Circuit matters. Therefore, any communications between Anderson Krieger and Lurie Friedman are not subject to disclosure, but rather protected by the common interest privilege. In this case, although portions of the invoices were redacted, the Town has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the authors and recipients, and information regarding the subject of each entry. Based on the information included in the invoices, and the explanations provided in the Town’s June 26th response, it is my understanding that the Town has met its burden to redact these invoices pursuant to the attorney- client privilege. Agency Relationship 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. Sch. Comm. 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 its June 26th response, the Town argues that “Special Counsel Anderson Kreiger is not a ‘public agent’ of the Town,” and that “municipal legal counsel are not ‘performing a government function.” The Town goes on to argue the following: The Town engages Anderson Kreiger to provide legal advice and representation of the Town with regard to four currently active litigation matters. That may include “representing” or acting on behalf of the Town, in a manner consistent with the Rules of Professional Conduct applicable to attorneys, but without “extensive supervisory controls” by the Town. Simply stated, Anderson Kreiger attorneys are not public agents of the Town by virtue of their provision of legal services to the Town. Based on the Town’s response, where Anderson Kreiger is acting on behalf of the Town, it is unclear how an agency relationship would not exist between the Town and Anderson Kreiger. Consequently, it remains unclear whether the records for the Town’s agents were searched. The Town must provide additional information detailing its 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.

Lisa M. Pedroli SPR23/1495 Page 5 July 13, 2023 Additionally, it is unclear from the Town’s response which specific records the Town intends to withhold. The Town must clarify this. 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”). Conclusion Accordingly, the Town is ordered to provide Attorney DiCenzo 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrew P. DiCenzo, Esq. Brian W. Riley, Esq.