Geraldine Mullaly v. Swansea, Town of - Town Clerk (SPR 20232257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 5, 2023 SPR23/2265 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Geraldine Mullaly appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 1, 2023, Ms. Mullaly made the following request: [1] [A] What is the name of the legal counsel who advised you that the dedicated funds/intent of language in Article 7 and Account # 011235952099 could be interpreted to extend to the Highway Building Design. [B] … all written documents created by legal counsel, and submitted to the Town, to justify/determine enforceable that interpretation? [C] … all dated invoices/receipts acquired/paid to legal counsel for any/all researching/scribing/etc. performed for this service. [D] … the dated documents distributed to the A&F/CBC/Selectmen/School, and any other Committee which notified you and members of counsel’s decision. [E] If Committee members were not provided written documentation, please advice [sic] me of the date/method by which they were notified. [2] [A] What is the name of the legal counsel who reviewed both the CHA and T2 Agreements? (see attached BOS Meeting Minutes August 15, 2023) [B] … any/all written documents submitted to the Town by legal counsel that affirms both contracts are error free/enforceable in language, calculations, referenced documenting information, and required signatures. [C] … all dated invoices/receipts acquired/paid to legal counsel for any/all researching/scribing/etc. performed for this action. [D] … the dated documents distributed to the A&F/CBC/Selectmen/School, and any other Committee which notified you and members of counsel’s decision. 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

Diane Pelland SPR23/2257 Page 2 October 5, 2023 [3] … the 2024 Condition of Accounts/Vendor Histories for the following accounts: OPM-Design Municipal Complex, Building Town Hall Site, and Testing Highway Building Design[.] [4] … the invoices/payment receipts/any other document which specifically identify the services rendered for the issuance of Vouchers 422 (Account #30422595310) and 123 (Account #011235952099) paid on 8/15/2023. On September 18, 2023, the Town responded and did not provide any responsive records. The Town indicated that portions of Items 1 and 2 were unclear and that portions of those records included records that could be withheld pursuant to the attorney-client privilege. Regarding Items 3 and 4, the Town indicated that Ms. Mullaly was previously provided the responsive records. Unsatisfied with the Town’s response, Ms. Mullaly petitioned this office and this appeal, SPR23/2257, 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 town 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) (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…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Town’s September 18th response On September 18, 2023, regarding parts A of Items 1 and 2, the Town indicated that “[t]he Public Records Law only applies to records. An RAO is not required by the Public Records Law to answer questions or create a record in response to a request.” Regarding part B of Items 1 and 2, the Town stated, “[a]ny documents responsive to this request would be exempt from production and subject to the Attorney-Client and Work Product Privileges.” Regarding parts C and D of Items 1 and 2, the Town stated, “[t]his request is vague, confusing and it is not clear what you are seeking. Notwithstanding, if my interpretation of your

Diane Pelland SPR23/2257 Page 3 October 5, 2023 request is accurate, any responsive documents would be exempt from production and subject to the Attorney-Client and Work Product Privileges.” Regarding part E of Item 1, the Town stated, “[t]he Public Records Law only applies to records. An RAO is not required by the Public Records Law to answer questions or create a record in response to a request. Notwithstanding, any response to this inquiry would be exempt from production and subject to the Attorney-Client and Work Product Privileges.” Regarding Items 3 and 4, the Town stated “[y]ou have previously and repeatedly requested these documents. The RAO is not required to respond to repetitive requests for the same documents.” Current Appeal In her appeal, Ms. Mullaly indicates that her request was clear and the Town did not meet its burden to withhold responsive records. Part A of Items 1 and 2 No Duty to Answer Questions, Conduct Research Ms. Mullaly is advised 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Ms. Mullaly submitted questions to the Town, I find the Town is not required under the Public Records Law to answer questions. Items 3 and 4 Ms. Mullaly is advised that “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” See 950 C.M.R. 32.07 (emphasis added). Where the Town claims that the records have been previously provided to Ms. Mullaly, I find that the Town has met its burden in responding to Items 3 and 4 of the request. Parts B, C, D, and E of Items 1 and 2 Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law

Diane Pelland SPR23/2257 Page 4 October 5, 2023 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 (2017); see also Hanover Ins. Co. v. Rapa & 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 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). Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (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. See also 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). The Town’s response did not contain the specificity required in a denial of access to public records. The Town did not identify the records in its possession that it intends to withhold from disclosure. Further, the Town merely cites the attorney-client privilege and work product

Diane Pelland SPR23/2257 Page 5 October 5, 2023 doctrine without sufficient explanation of the applicability of the exemptions to the responsive records. In this case, the Town has not provided any description of the records being withheld under the privilege, nor explained how the records are privileged under Suffolk. Also, the Town did not provide the names of the author and recipients, dates, subject of the records, nor the grounds upon which the privilege is being claimed per G. L. c. 66, § 10A(a). The Town must clarify these matters. Further, the Town has not explained how responsive records for parts B, C, D, and E of Items 1 and 2 are exempt in their entirety pursuant to Exemption (d) and the work product doctrine. The Town must explain why segregable portions cannot be provided. See 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). Consequently, I find that the Town has not met its burden of specificity in claiming the attorney-client privilege and work product doctrine to withhold the requested records. Conclusion Accordingly, the Town is ordered to provide Ms. Mullaly with a response to the 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: Geraldine Mullaly