Robert Belbin v. Carver, Town of - Town Clerk (SPR 20231873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2023 SPR23/1873 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 Appeals This request was the subject of a previous appeal. See SPR23/1547 Determination of the Supervisor of Records (July 18, 2023) and SPR23/1653 Determination of the Supervisor of Records (August 2, 2023). In my August 2nd determination, I ordered the Town to clarify its claims under the attorney-client privilege. Subsequently, the Town responded on August 11, 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 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 SPR23/1873 Page 2 August 28, 2023 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 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Belbin contends that “[a]s for the Att[orney] client protection, once the opinion was discussed in public email by . . . and . . . they lost that protection. Furthermore, that the counsel opinion was discussed with [the] ZBA Chairman further removed the att[orney] client privilege.” Mr. Belbin reiterates his arguments in an email to this office on August 14, 2023. The Town’s August 11th Response In its August 11, 2023 response, the Town cites the attorney-client privilege for withholding six email communications. 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

Michelle Sheehan SPR23/1873 Page 3 August 28, 2023 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 August 11th response, the Town provides an index listing the six email messages being withheld under the attorney-client privilege, including the dates, the names of the senders and recipients, and the subject of each communication. The Town also explains the following: [T]he disclosure of these opinions to Mr. and Mrs. Clarke does not constitute a waiver of the privilege. At the time of the disclosure of Town Counsel’s opinion to the Clarkes on May 9, 2023, they were public officials serving the Town in official capacities on several boards and committees. When a governmental entity employs an attorney to serve as its legal counsel, the entity is the client, but confidential communications between the counsel and the entity’s employees undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. . . . Likewise, the reference to the opinion in the Clarkes’ resignation letters did not result in a waiver of the privilege. Although the resignation letters are public records, the mere fact that a person publicly states that they are acting on advice of counsel or that they received the advice of an attorney does not waive the privilege. In this case, the Town has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege. Additionally, the Town has explained that the privilege has not been waived. Consequently, I find the Town has met its burden to withhold the responsive emails pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Belbin is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Robert Belbin Gregg J. Corbo, Esq.