Eugenia M. Sticca v. Ashland, Town of - Office of the Town Clerk (SPR 20240434)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2024 SPR24/0434 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 Appeals This request was the subject of previous appeals. See SPR23/2937 Determination of the Supervisor of Records (December 19, 2023) and SPR24/0237 Determination of the Supervisor of Records (February 7, 2024). In my February 7th 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 February 8, 2024. Unsatisfied with the response, Ms. Sticca petitioned this office and this appeal, SPR24/0434, was opened as 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 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 SPR24/0434 Page 2 February 23, 2024 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. 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 February 8th Response In its February 8th response, the Town cited the attorney-client privilege to redact previously produced records. Current appeal In her appeal, Ms. Sticca states: [P]lease note that our initial records request and subsequent email communication with the Town requested that the records be produced in their native (.msg) format with attachments. The Town clarified in its response that it was not possible to produce native “.MSG” format data where the Town uses Google suite of products. To be clear, we are not requesting the Town produce records in a format which they are not maintained or convert those records to “.MSG” format. Rather, our request is that the records are produced in whatever native format they are maintained. Note that despite the Town’s position that our request requires the town to create “new” records, the Town has created PDFs of their native format records instead of producing the records in the manner which they are maintained. Furthermore, we are certain the Town’s counsel is fully aware of the ecosystem of electronic discovery tools which would allow review of native format data for production. The review of that data is, however, obviated as the Town has already identified the email correspondence subject to withholding. Therefore, those emails can readily be culled from the native data subject to production without the use of electronic discovery tools. In this circumstance, we would accept the PDF copies of the redacted emails so long as those not subject to a privilege claim are produced in their native format… 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

Cindy Livingstone SPR24/0434 Page 3 February 23, 2024 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 February 8th response, the Town stated: In response to the Town’s explanation that the Town uses Google’s suite of products for which emails do not exist in raw msg format as they do for Outlook, Attorney Barrett provided Google instructions on how to download or export data. These instructions do not clarify how to convert google files to msg format or whether or not it can be done. Further, the Town does not know whether it has the ability to review files in that format for redaction purposes or otherwise, and whether such files can be redacted once converted, as the Town does not have Outlook, which is the software for which that format is used. The Town originally provided the records in a shared Google folder, as the instructions suggest and as previously requested. For redaction purposes, and to fulfill the legal requirement that records be produced in electronic searchable format consistent with the Public Records Law, responsive emails were then converted to pdf. The Town’s position is that it has not only provided the emails in their raw format in Google drive, but it has satisfied the requirement of the Public Records Law to provide electronic searchable files for review. Providing any other format for the requestor would arguably be creating new records as they do not currently exist in that format. Further, it will require considerable time and effort to figure out how to create those records and once again review and redact the same. The Town has already provided the records in searchable format, as required, and Attorney Barrett has had ample time to review said records, but rather than do so has spent countless hours disputing the Town’s response and insisting that the Town create new records so that he can save his client money. Where the Town has indicated that it cannot produce the files in their native format, and the records have been produced in machine readable format, I find that this portion of Ms. Sticca’s appeal is resolved. 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

Cindy Livingstone SPR24/0434 Page 4 February 23, 2024 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 February 8th response, the Town provided a privilege log. Upon review, the Town’s February 8th response provided a privilege log which complies with the requirements under the attorney-client privilege. I find that the Town has satisfied this request. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colin Barrett, Esq. Eugenia M. Sticca Elizabeth Lydon, Esq.