Eugenia M. Sticca v. Ashland, Town of - Office of the Town Clerk (SPR 20232937)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2023 SPR23/2937 Cindy Livingstone Town Clerk Town of Ashland 101 Main Street Ashland, MA 01721 Dear Ms. Livingstone: I have received the petition of Eugenia M. Sticca, on behalf of Attorney Colin Barrett, appealing the response of the Town of Ashland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 15, 2023, Ms. Sticca requested email correspondence, town meetings minutes, applications, drafts and other documents pertaining to, “the G.L. c. 40B development known as Arbella at Ashland.” The Town provided responses from October 31, 2023 to November 17, 2023. The Town provided a further response on November 22, 2023. Unsatisfied with the responses, Ms. Sticca petitioned this office and this appeal, SPR23/2937, 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, § l0A(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. Attorney 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. 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

Cindy Livingstone SPR23/2937 Page 2 December 19, 2023 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 The Town’s Responses From October 31, 2023 to November 17, 2023, the Town produced documents in PDF format on a rolling basis. In an email sent to the Town on November 7, 2023, Ms. Sticca stated, “[c]ould [the Town] kindly provide us with a native .msg format for e-mails and natives for anything else? It appears that the latest batch of e-mails did not include the attachments, and the earlier batch included only some of the attachments. I just want to be sure that we have a full copy of the Town’s response.” In its November 22, 2023 response, the Town confirmed that it was unable to produce documents in the native format. Current appeal In her appeal, Ms. Sticca states, “we clearly requested emails and documents in native (e.g. “.msg”, “.xls”, “.doc”, “.pdf”) format, which is consistent with the manner in which the records are maintained by the Town… the Town of Ashland has failed and refused to identify the documents subject to withholding (or redaction) in a manner consistent with [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 (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).

Cindy Livingstone SPR23/2937 Page 3 December 19, 2023 In its November 8 response, the Town stated, “[s]ome emails have been partially redacted due to attorney-client privilege.” I find that the Town has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Town must clarify 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 and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. The Town must clarify. Preferred Format/Records in Native Form A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Also, “[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible.” 950 C.M.R. 32.07(1)(d). Based on Ms. Sticca’s claim, coupled with the Town’s responses, it is unclear whether it is possible for the Town to provide records that are not originally stored in a pdf format in their native form. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Sticca with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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: Eugenia M. Sticca