Joseph Pecevich v. Marshfield, Town of - Town Administrator (SPR 20240885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2024 SPR24/0885 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Joseph Pecevich appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 5, 2023, Mr. Pecevich requested, “all communications between the Selectboard members and the Town Administrator . . . with the Marshfield Town Planner and Planning Department Housing Authority the Quincy Housing Authority, . . . for the period January 1, 2023 through September 5, 2023…” Prior Appeals This request was the subject of prior appeals. See SPR23/2286 Determination of the Supervisor of Records (October 6, 2023); SPR23/2448 Determination of the Supervisor of Records (October 30, 2023); and SPR24/0466 Determination of the Supervisor of Records (February 26, 2024). In my February 24th determination, I found that the Town had not met its burden to redact the responsive records under the attorney-client privilege, and that the Town must clarify if additional responsive records exist. The Town responded on March 22, 2024. Unsatisfied with the response, Mr. Pecevich petitioned this office and this appeal, SPR24/0885, 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). 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

Michael A. Maresco SPR24/0885 Page 2 April 5, 2024 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 22nd Response In its March 22, 2024 response, the Town cited the attorney-client privilege and provided a privilege log. Additionally, the Town stated, “[t]he Town of Marshfield does not have any additional records regarding this response. On November 15, 2023, Mr. Pecevich picked up approximately 500 pages of requested information with the allowable costs being waived.” Current appeal In his appeal, Mr. Pecevich states, “[t]here is no apparent reason for the contents of the listed communications to be withheld from me. Also, it is incredible and unbelievable that there were no communications with the Town Administrator and the Town Counsel on the subject matter under which my Public Records Request was made. The Town must be withholding communications on the subject dated prior to August 2, 2023.” 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).

Michael A. Maresco SPR24/0885 Page 3 April 5, 2024 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 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 and that the communications were made in confidence and that the privilege as to these communications has not been waived. Additionally, in light of Mr. Pecevich’s current appeal, it is unclear if the Town possesses additional records that may be responsive to the request. Specifically, the Town must clarify if there are “. . . communications on the subject dated prior to August 2, 2023.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that responsive records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Pecevich 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Pecevich