Margaret Sheehan v. Carver, Town of - Town Clerk (SPR 20240451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2024 SPR24/0451 Michelle Sheehan Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Margaret E. Sheehan, Esq., of the Community Land & Water Coalition, appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 17, 2023, Attorney Sheehan requested the following records for the period from October 1, 2022 to present: [1.] …all records referring to the waiver referred to in the February 14, 2023 letter from the ERC to Makepeace. [2.] The “the opinion of town counsel” referred to in the February 9, 2023 letter from Makepeace to the ERC, including but not limited to emails, correspondence, and phone notes. [3.] The “consultation” between and among the “Town Counsel” and the Town Administrator as referred to in the February 14, 2023 Letter to [an identified individual], Town of Plymouth, from [an identified individual], including all email, correspondence, and phone notes. [4.] All correspondence with Dig It Construction LLC, its employees, officers, agents regarding the ‘Long Beach Mixed Sediment Nourishment Project’. [5.] All records relating or referring to communications with Makepeace, Read Custom Soils, LLC, its employees, agents, or representatives, regarding the waiver, including but not limited to [an identified individual]. 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

Michelle Sheehan SPR24/0451 Page 2 February 27, 2024 [6.] All records relating or referring to communications with the Town of Plymouth regarding the Long Beach Renourishment Plan… Previous Appeals The requested records were the subject of previous appeals. See SPR23/3091 Determination of the Supervisor of Records (January 4, 2024) and SPR24/0178 Determination of the Supervisor of Records (February 2, 2024). In my February 2, 2024 determination, I learned the Town had provided a further response and the appeal was closed. The Town provided responses on January 19, 2024 and February 1, 2024. Unsatisfied with the responses, Attorney Sheehan petitioned this office and this appeal, SPR24/0451, 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 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. 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 January 19th and February 1st responses In its January 19, 2024 response, the Town provided a series of records and claimed attorney-client privilege to withhold a portion of the records. In its February 1, 2024 response, the Town provided a record and privilege log and stated, “[a]ttached you will find the privilege log as well as the document (letter) attached to the 02/08/2023 email from [an identified individual] to [an identified individual].”

Michelle Sheehan SPR24/0451 Page 3 February 27, 2024 Current Appeal In her current appeal, Attorney Sheehan stated, “[Community Land and Water Coalition] …asserts that the [Earth Removal Committee] has not justified the grounds for the privilege, and that if the privilege did apply, it was waived by the [Earth Removal Committee’s] disclosure of the Opinion to a third party.” Attorney Sheehan further stated, “’[p]ublic officials seeking the protection of the attorney-client privilege are required to produce detailed indices to support their claims of privilege, as DCAM was ordered by the judge to do in this case.’ Suffolk Cons., v. Division of Capital, 449 Mass. 444, 460 (Mass. 2007). The ERC has done no such thing. It merely produced a document identifying the documents.” Attorney Sheehan also stated, “[t]he Town waived the privilege by disclosing the Opinion to Makepeace, a private party not covered by the privilege… [an identified individual] wrote an email stating Makepeace had been ‘notified.’” Attorney Sheehan cites an email dated February 8, 2023 in which [an identified individual] stated, “I agree with Town Counsel, Makepeace/Read custom soils has already been notified, they are getting the town of carver [sic] a description of the work intentions for this particular job.” Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. In its response, the Town stated: …[w]ith regards to your request, the following responsive records are being withheld pursuant to the attorney/client privilege: [1.] January 31, 2023 e-mail from [an identified individual] to [an identified individual] requesting legal advice and [an identified individual]’s February 7,

Michelle Sheehan SPR24/0451 Page 4 February 27, 2024 2023 response. [2.] January 31, 2023 e-mail from [an identified individual] to [an identified individual] relating to request for legal advice The Town also stated, “I have been informed by Town Counsel that the requested e-mails were sent and received from a client (the Town of Carver) during the course of the client’s search for legal advice from an attorney (Town Counsel), that the communications were made in confidence and that the attorney/client privilege has not been waived.” As part of the decision making process, the agency or municipality must 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. See G.L. c. 66, §10A(a). In this instance, the privilege log does not provide the general substance of the record withheld or explain why the entirety of the documents are privileged. Further, the documents provided show an email providing the opinion of Town Counsel in question to two identified individuals. Based on the Town’s response, it is unclear if each of these individuals constitute clients for whom the communications remain privileged or a third party for whom disclosure constitutes waiver. The Town must also clarify if the communications have been provided to a third party, constituting a waiver of attorney-client privilege. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Attorney Sheehan with 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. Attorney Sheehan may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Margaret E. Sheehan, Esq.