Eugenia M. Sticca v. Ashland, Town of - Office of the Town Clerk (SPR 20240237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2024 SPR24/0237 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.” Previous Appeal This request was the subject of a previous appeal. See SPR23/2937 Determination of the Supervisor of Records (December 19, 2023). In my December 19th determination, I found that the Town did not meet its burden to redact records pursuant to the attorney-client privilege. I further directed the Town to clarify if it is feasible to produce the records in their native form. The Town responded on December 20, 2023. Unsatisfied with the response, Ms. Sticca petitioned this office and this appeal, SPR24/0237, 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. 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 SPR24/0237 Page 2 February 7, 2024 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. 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 December 20th Response In its December 20th response, the Town cited the attorney-client privilege to redact previously produced records. Subsequent to the opening of this appeal, on January 29, 2024, the Town stated, “[w]e have released all documents including an explanation for redactions and reason we cannot provide .msg format. The Town does not have any other records responsive.” Current appeal In her appeal, Ms. Sticca states, “[o]ur office respectfully asks the Public Records Division order the Town of Ashland to comply with the request by producing all responsive records in their native format and confirming, in writing, the documents withheld or redacted…” Preferred Format 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). In the December 20th response, the Town stated, “[r]egarding msg formatted files, the Town uses Google’s suite of products, which is a cloud-based platform, for email and does not use Microsoft Outlook. Therefore, emails do not exist in raw msg format as they do for Outlook. When the Town receives a request for emails, they are converted to pdf to fulfill the legal requirement that they be produced in electronic searchable format consistent with the Public Records Law, and so that the Town may redact the same.” On January 29, 2024, Ms. Sticca sent additional correspondence which stated, “the Town incorrectly claims that technological limitations prevent it from producing responsive documents in raw native format. In brief, this statement is fundamentally incorrect and belied by instructions outlined below and published by Google. In response to our appeal, the Town claims, ‘the Town uses Google’s suite of products, which is a cloud-based platform, for email and does not use Microsoft Outlook. Therefore, emails do not exist in raw .msg format as they do for outlook.’

Cindy Livingstone SPR24/0237 Page 3 February 7, 2024 The Town’s use of a Google suite of products does not prevent it from producing native format emails. Google publishes readily available instructions to export email data from its suite of products. We enclose a copy of the instructions herewith… There is simply nothing preventing the Town from producing raw email data in the manner it is maintained by the Town in compliance with the Public Records Law.” Based on Ms. Sticca’s claim, the Town must clarify why it is not feasible to produce the records in the native format as requested. 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). In its December 20th response, the Town provided a privilege log and stated, “[c]ertain of the withheld documents are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (e.g., the Town) undertaken for the purpose of obtaining legal advice or assistance on matters of law.” 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 made in confidence and that the privilege as to these communications has not been waived. Further, although the Town provides some information in the privilege log regarding these records, the Town must provide a privilege log in accordance with G. L. c. 66, § 10A(a). Specifically, the Town must provide the names of the author and recipients, the date, and the grounds upon which the attorney-client privilege is being claimed.

Cindy Livingstone SPR24/0237 Page 4 February 7, 2024 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 Colin Barrett, Esq.