Christopher Rocca v. Truro, Town of (SPR 20240083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 25, 2024 SPR24/0083 Noelle Scoullar Records Access Officer Town of Truro 24 Town Hall Road P. O. Box 2030 Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Christopher Rocca appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2023, Mr. Rocca requested “…all communications to or from the following [identified individuals] between the dates 10/1/2023 and 10/19/2023 …” Prior Appeal The request was the subject of a prior appeal. See SPR23/2950 Determination of the Supervisor of Records (December 20, 2023). In my December 20th determination, I found that it was unclear whether the Town possesses additional records responsive to Mr. Rocca’s October 19th request, and directed the Town to clarify. The Town provided responses on January 3, 2024. Unsatisfied with the Town’s responses, Mr. Rocca appealed and this case was opened. 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Noelle Scoullar SPR24/0083 Page 2 January 25, 2024 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 January 3rd Response On January 3, 2024, the Town stated, “[t]he discrepancy between our original estimate of number of documents and number produced is due to some of the original documents being non responsive to the request; and [m]essages shared with outside parties can also include the Town’s Legal Counsel, which would relegate those emails as classified as attorney-client privilege.” In a January 10th email, The Town informed this office, “Mr. Rocca sent an email to us on January 8. I responded with the Town Manager’s response this morning. I have copied the email exchange. . . .” In response to Mr. Rocca’s inquiry, the Town indicated that “. . . as a former IT Director, it is possible for documents to be produced from a keyboard search on Outlook server that are unresponsive to the request. It’s also not possible to answer every possible scenario because every search criteria is different, but it is certainly possible that unresponsive documents can be produced.” Mr. Rocca also stated in the January 8th email exchange, “Darrin mentioned the [T]own’s attorney wrote a note regarding their position on attorney-client privilege, does the second point come directly from the [T]own’s attorney?” The Town Manager responded to the question highlighted in red, “[t]hat is the opinion of Town Council-KP Law.” Mr. Rocca’s January 9, 2024 Petition for the Current Appeal In his January 9th petition, Mr. Rocca asserts, “[a]fter consideration, I believe these responses do not provide sufficient information for me to determine whether the Town has complied with the order issued by [the Supervisor] on 12/20/2023.” As to the emails searched for and provided, Mr. Rocca states, “[t]he Town did not provide any additional information as to how or why a subset of the 402 messages identified in the original cost estimate were deemed non-responsive. From an IT perspective I am at a loss as to how the trivial database query outlined in the initial query outlined in the initial [Public Records request] could yield unrelated results.” Where the Town has explained that it does not possess additional responsive records, I find the Town has met its burden in providing records responsive to Mr. Rocca’s October 19th request. Common law attorney-client privilege A records custodian claiming the attorney-client privilege 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

Noelle Scoullar SPR24/0083 Page 3 January 25, 2024 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 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). Further, in his petition, Mr. Rocca states, “[t]own manager . . . informed me the [T]own attorneys assert attorney-client communications shared with outside parties remains under attorney-client privilege, i.e., the privilege is extended to the outside party. If you use the 10/3/2023 email from Select Board Chair . . . to [a named individual] as an example, is it the case that message remains under attorney-client privilege even though [the named individual] is not a [Town] elected official or [T]own employee? From the [privilege log] provided it is not possible to know if the [T]own’s attorney was [cc’d] or [bcc’d] on these [communications] and to the best of my knowledge the Town did not explicitly state that their attorneys were [cc’d] on the messages.” Based on the above, I find the Town must clarify how an attorney-client relationship exists between the named parties on the privilege log. Conclusion Accordingly, the Town is ordered to provide a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Christopher Rocca