Robert Belbin v. Carver, Town of - Town Clerk (SPR 20231653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2023 SPR23/1653 Michelle Sheehan Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Robert Belbin appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2023, Mr. Belbin requested the following records: [1.] [T]he resignation letters from [named persons]. [2.] All emails to and from each of them regarding their positions on elected or appointed positions for the Town of Carver related to residency requirements. [3.] All Town Counsel opinions related to residency requirements for Town Officials within the past year. [4.] All emails to and from the following Town Officials related to [named persons] and their positions on Town Boards and Committees. Previous Appeal This request was the subject of a previous appeal. See SPR23/1547 Determination of the Supervisor of Records (July 18, 2023). In my July 18th determination, I closed SPR23/1547 in light of the Town providing Mr. Belbin a further response on July 18, 2023. Unsatisfied with the Town’s response, Mr. Belbin 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 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

Michelle Sheehan SPR23/1653 Page 2 August 2, 2023 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 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Belbin contends the following: Town Counsel does not want to release Town Counsels opinion related to residency requirements they opined. Yet, this was never discussed in a Select Board meeting or in executive session per the agendas. Also, since [two named individuals] mentioned this opinion and the contents of the opinion they waived the confidentiality. The Town’s July 18th Response In its July 18, 2023 response, the Town provides one responsive resignation letter, and states that “with regard to the opinion of Town Counsel, the Town asserts that any responsive documents are exempt from disclosure pursuant to the 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

Michelle Sheehan SPR23/1653 Page 3 August 2, 2023 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 July 18th response, under the attorney-client privilege, the Town argues the following: After review of responsive records, [Town Counsel has] determined that the opinions of Town Counsel on the subject of residency comprise confidential communications between a governmental entity and its legal counsel undertaken for the purpose of obtaining legal advice or assistance; and the Town has not waived its privilege with respect to such records. Therefore, the records are not subject to disclosure under the Public Records Law and the appeal should be dismissed. Based on its July 18th response, the Town has not met its burden in responding to this request. Specifically, although the Town provides some information regarding the nature of the withheld record, I find that in accordance with G. L. c. 66, § 10A(a), the Town must 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.” Additionally, based on information provided in Mr. Belbin’s appeal, it is unclear whether the privilege as to the communication has been waived. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Belbin 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: Robert Belbin