Margaret Sheehan v. Carver, Town of - Town Clerk (SPR 20240840)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 3, 2024 SPR24/0840 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]. [6.] All records relating or referring to communications with the Town of Plymouth regarding the Long Beach Renourishment Plan… 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 SPR24/0840 Page 2 April 3, 2024 Previous Appeals The requested records were the subject of previous appeals. See SPR23/3091 Determination of the Supervisor of Records (January 4, 2024); SPR24/0178 Determination of the Supervisor of Records (February 2, 2024); and SPR24/0451 Determination of the Supervisor of Records (February 27, 2024). In my February 27, 2024 determination, I ordered the Town to provide a more detailed privilege log, including the substance of the record, and clarify whether the communications had been disclosed to a third party. The Town provided a response on March 14, 2024. Unsatisfied with the response, Attorney Sheehan petitioned this office and this appeal, SPR24/0840, 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 March 14th Response In its March 14, 2024 response, the Town provided clarifications on its claim of attorney- client privilege. Current Appeal In her current appeal, Attorney Sheehan stated: [1.] The Town did not provide a detailed description of the substance of the record(s) being withheld.

Michelle Sheehan SPR24/0840 Page 3 April 3, 2024 [a.] First, it is CLWC’s position that the requested record is not exempt from disclosure under the attorney client privilege. Government documents such as these granting a permit waiver to a private company is not the type of record that should be exempt from the Public Records Law based on attorney-client privilege. [b.] Even if these government documents were protected, the Town simply outright refuses to disclose the substance of the allegedly privileged legal opinion. The Town’s Response gives only a general description about the email request for advice and that is not sufficient. CLWC requests that if the record is withheld, that the Town be required to provide a detailed description of the substance of the record. [2.] The Town waived the privilege by disclosing the substance to AD Makepeace Co. and the Town of Plymouth. 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 March 14, 2024 response, the Town stated: …on January 31, 2023, [an identified individual] sent an e-mail to Town Counsel [a second individual] requesting a legal opinion…the e-mail involved a request for advice concerning the need for an earth removal permit in connection with work to be conducted on behalf of the Town of Plymouth. On February 7, 2023, Town Counsel responded to his client with the advice

Michelle Sheehan SPR24/0840 Page 4 April 3, 2024 requested. The e-mail was sent to the Town Administrator and the then Chair of the Earth Removal Committee [an identified individual]. The substance of Town Counsel’s opinion was not shared with any third-party. On February 8, 2023, the Town Administrator shared the opinion with the Chair of the Earth Removal Committee. Both individuals as Town officials, are clients of Town Counsel. On February 14, 2023, the Earth Removal Committee Chair wrote to the Director Marine and Environmental Affairs for the Town of Plymouth informing him that the work did not require an Earth Removal Permit. In that correspondence, the Chair states that he consulted with Town Counsel. The Chair did not disclose the substance of that consultation. Upon review, in its March 14, 2024 response, the Town clarified the nature of the request for legal advice in the communications with legal counsel. The Town further explained that the substance of the communication was not shared with any third parties. Where the Town clarified details in its March 14, 2024 response, and provided a privilege log on February 1st, I find the Town has met its burden to withhold records responsive to the request under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Sheehan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Margaret E. Sheehan, Esq.