Philip L. Cohen v. Wayland, Town of (SPR 20231638)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 28, 2023 SPR23/1638 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 concerning 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. 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 SPR23/1638 Page 2 July 28, 2023 [4] ... all public records constituting any payment, in whole or part, made by the Town for legal services, costs and Wayland, Massachusetts in connection with that litigation. Previous Appeal This request was the subject of a previous appeal. See SPR23/1135 Determination of the Supervisor of Records (June 14, 2023). In my June 14th determination, I ordered the Town to clarify how the requested “contingent fee agreement” relates to active litigation. Subsequently, the Town responded on June 26, 2023. Unsatisfied with the Town’s response, Mr. Cohen 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. 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 Response In its June 26, 2023 response, the Town argues that the responsive records are the subject of active litigation. In its previous May 5, 2023 response, the Town provides three responsive records, and indicates others were being withheld pursuant to the attorney-client privilege. 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 states the following:

Trudy Reid SPR23/1638 Page 3 July 28, 2023 As stated, the LSA [legal services agreement] not only details how the attorney will be compensated for services related to PFAS litigation, the LSA also spells out the legal strategy in which the law firm plans to utilize going forward. Essentially, the LSA details what the Town is paying the law firm for and how they plan to go about it. Therefore, the question of how ‘the contingent fee agreement’ includes litigation is answered similarly because the same agreement that includes the details for compensation also includes what services the Town is paying for which in turn details the strategy of the law firm in pursuing this case. Based on the information provided by the Town, I find that the Town has not demonstrated that the records requested in this appeal are the subjects of dispute in active litigation. Accordingly, it is necessary to address the Town’s claims of attorney-client privilege. 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 May 5th response, under the attorney-client privilege, the Town argues the following: [T]he only documents that are considered public are the attached press release, the introductory proposal and the originally files [sic] PFAS complaint. All other documentation and communications are exempt per the 2007 (Suffolk Construction v. Division of Capital Asset Management Division) by the Supreme Judicial Court. The court ruled, “confidential communications between public officers and employees and governmental entities and their legal counsel

Trudy Reid SPR23/1638 Page 4 July 28, 2023 undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of attorney-client privilege.” Additionally, in its May 5th response, the Town provides the following explanation from an attorney representing the Town: My view is that the legal services agreements (including drafts and the signed versions) are also attorney-client privileged, because they discuss a proposed legal strategy (investigating and filing lawsuits against those responsible for the PFAS contamination) and how we plan to carry it out. Obviously the fact that the Town has hired us, and has done so on a contingency fee basis, is public, but I think the agreements themselves remain public. In this case, although the Town has provided some information regarding the nature of the withheld records, I find that 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, 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. Cohen 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: Philip L. Cohen