Amy M. Belger v. Holliston, Town of - Town Clerk (SPR 20240903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2024 SPR24/0903 Elizabeth Greendale Town Clerk Town of Holliston 703 Washington Street Holliston, MA 01746 Dear Ms. Greendale: I have received the petition of Attorney Amy Belger appealing the response of the Town of Holliston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2024, Attorney Belger requested the following for the period of June 2020 to the present: [1.] All legal opinions, memoranda and written communications provided to and received by town officials or town elected representatives, including the members of the select board, by Mead, Talerman & Costa, LLC and any other law firm or legal advisor that relates to or mentions the town flag policy or the display of the Pride flag[;] [2.] All emails, letters, phone messages and other communications sent by town officials or town elected representatives, including the members of the select board, to Mead, Talerman & Costa, LLC and any other law firm or legal advisor that relates to or mentions the town flag policy or the display of the Pride flag; [3.] All emails, letters, phone messages and other communications received by town officials or town elected representatives, including the members of the select board, from anyone, that relate to or mention the town flag policy or the display of the Pride flag[;] [4.] All emails, letters, phone messages and other communications sent by town officials or town elected representatives, including the members of the select board, to citizens residing in the Town of Holliston, that relate to or mention the town flag policy or the display of the Pride flag[;] 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

Elizabeth Greendale SPR24/0903 Page 2 April 9, 2024 [5.] All emails, messages, memoranda, and other communications sent by town officials or town elected representatives, including the members of the select board, to any member of the public outside of the Town of Holliston, or to any other elected official or representative of any other municipality or city inside or outside the Commonwealth of Massachusetts, that relate to or mention the town flag policy or the display of the Pride flag. The Town responded on March 12 and March 25, 2024. Unsatisfied with the responses, Attorney Belger petitioned this office and this appeal, SPR24/0903, 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 Responses In its March 12, 2024 response, the Town provided records and cited the attorney-client privilege to withhold certain records. The Town also provided a privilege log. Additionally, the Town stated, “the Town acknowledges there are 90 emails being withheld for Attorney Client Privilege. There is a file titled ‘Held for Attorney-Client Privilege’ listing the sender, subject line, and date sent for those emails.” In its March 25, 2024 response, the Town stated, “our IT Director, who is also listed as a RAO for the Town of Holliston, sent [Attorney Belger] the requested emails, texts, written communications and memoranda to and from town officials, residents and other representatives outside the Town of Holliston. [Attorney Belger was] also provided with a list of emails with their dates and subject, which were withheld due to attorney client privilege, on the advice of our Town Counsel.”

Elizabeth Greendale SPR24/0903 Page 3 April 9, 2024 Additionally, in an email sent to this office on April 1, 2024, the Town stated, “[t]o clarify the Town’s response, the withheld emails are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (e.g., the Town) undertaken for the purpose of obtaining legal advice or assistance on matters of law… Here, the entirety of the withheld confidential communications related to the development of the flag policy, were made in confidence, have not been provided to third parties, and the privilege has not been otherwise waived.” Current appeal In her appeal, Attorney Belger states, “[t]he privilege log provided to me by [the Town] is insufficient in that it does not contain the totality of the information that the law requires… As you can see from the privilege log… the Town of Holliston has misused the attorney-client privilege by failing ‘to produce detailed indices to support [its] claims of privilege.’… Any claim of privilege as to the records I have requested is questionable. The town has relied upon ‘advice of counsel’ to restrict and curtail the free expression of citizens that has historically been the pattern and practice established over the course of several years… The town cannot pass a regressive ordinance that restricts free speech in the town on “advice of counsel” and then claim that the advice given is confidential and will not be shared with its citizens. That is not the type of communication between lawyers for municipalities and town leaders that fits the legal definition of a confidential communication for purposes of application of the attorney-client privilege.” 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). The Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the

Elizabeth Greendale SPR24/0903 Page 4 April 9, 2024 date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Upon review, the Town must provide the names of the recipients of the communications in accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Attorney Belger 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: Amy M. Belger, Esq. Travis J. Ahern Elizabeth Lydon, Esq.