Allen Waller v. Marblehead, Town of (SPR 20240648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2024 SPR24/0648 Kyle A. Wiley Records Access Officer Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Kyle A. Wiley: I have received the petition of Alan D. Waller appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2024, Mr. Waller requested “copies of Meade Talerman & Costa LLC invoices to the Town for periods April 2023 through December 2023.” The Town responded on February 12, 2024, providing records in redacted form, and claiming that the responsive records were redacted pursuant to Exemptions (c), (d) and (j) of the Public Records Law, and pursuant to the attorney-client privilege. See G. L. c. 4, § 7(26)(c), (d), (j). Unsatisfied with the Town’s response, Mr. Waller appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Town provided supplemental responses to Mr. Waller and this office on March 8 and March 14, 2024. 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 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

Kyle A. Wiley SPR24/0648 Page 2 March 22, 2024 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 Responses In its February 12, March 8, and March 14, 2024 responses, the Town provides redacted copies of invoices, and cites Exemptions (c), (d) and (j) of the Public Records Law, and the attorney-client privilege for redacting the records. See G. L. c. 4, § 7(26)(c), (d), (j). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its February 12th response, under Exemption (c), the Town states that it has “redacted from the record identifying details belonging to private Town residents pursuant to G.L. c. 4, § 7(26)(c),” and argues that “the names and addresses of these private individuals are used not only

Kyle A. Wiley SPR24/0648 Page 3 March 22, 2024 as attorney-client privileged billing identifiers for providing legal counsel but the persons named may become or are the subject of Town enforcement or other action that members of the public would not be privy to.” Based on the Town’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the Town did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Town must clarify these matters. Exemption (j) Exemption (j) of the Public Records Law permits a records custodian to withhold or redact portions of records containing: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards G. L. c. 4, § 7(26)(j). The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. A records custodian may withhold an entire firearms record if the requestor knows with certainty that this particular record pertains to a specific address or individual. In such an instance, redaction would be futile as it would not protect the identity of the license holder(s). See id.; see also G. L. c. 140, §§ 121-131P. In its February 12th response, the Town argues that “certain entries on pages: 46, 49, 84, and 85, are being redacted pursuant to exemption G.L. c. 4, § 7(26)(j), as these entries reference individual(s) and entities that own firearms.” In its March 14th response, the Town further describes these entries as “discussing litigation and person owning firearms” and “discussing firearm ownership.” Based on the Town’s responses, and the redacted copies of the records provided by the Town, I find that the Town has met its burden to redact the names and addresses of individuals whose names are contained in applications to carry or possess firearms under Exemption (j). Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law

Kyle A. Wiley SPR24/0648 Page 4 March 22, 2024 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 (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 not inspect the record but 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 12th response, the Town states the following: To the extent the invoice entries include descriptions of legal services that disclose (1) the confidential communications between the Town and its legal counsel undertaken for the purpose of obtaining legal advice or assistance; (2) attorney opinion work product sought in anticipation of or during the pendency of litigation; or (3) certain attorney fact work product under Mass. R. Civ. P.26(b)(3) that was prepared in anticipation of litigation or trial, the responsive records have been redacted accordingly. In its March 8th response, the Town further explains that “everything that [the law firm] advised their client to redact in its invoices does reveal the ‘motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of the law.’” The Town further explains “that the invoices were sent to the Town in confidence and the privilege has not been waived.” Additionally, in its March 14th response, the Town provides a Privilege Log which includes the dates, authors, and descriptions of the information redacted under the attorney-client privilege. Although the Town provides some information regarding the nature of the responsive records, where the Town has described the recipient(s) merely as “Town of Marblehead,” I find the Town has not provided the names of the recipients of the invoices, as required under G. L. c. 66, § 10A(a). Where G. L. c. 66, § 10A(a) provides that a records custodian must provide the names of the author and recipients of the records being withheld under the attorney-client privilege, I find the Town must clarify the names of the recipients of the invoices. Conclusion Accordingly, the Town is ordered to provide Mr. Waller with a response to the request,

Kyle A. Wiley SPR24/0648 Page 5 March 22, 2024 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: Alan D. Waller Marko Samardzic, Esq.