John Sayers v. Abington, Town of - Office of the Town Clerk (SPR 20241033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 19, 2024 SPR24/1033 Leanne M. Adams Town Clerk Town of Abington 500 Gliniewicz Way Abington, MA 02351 Dear Ms. Adams: I have received the petition of John Sayers appealing the response of the Town of Abington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 10, 2024, Mr. Sayers requested, “[a]ll communication records between Abington Selectman… and [a named individual] to include email, telephonic, text or any other electronic communication. This request is also for his private email used in the capacity of public duties, phone correspondence made as a member of the board, or any other related communications. The time frame of this request is from January 1, 2022, until present.” The Town responded on March 28, 2024. Unsatisfied with the response, Mr. Sayers petitioned this office and this appeal, SPR24/1033, 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. 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

Leanne M. Adams SPR24/1033 Page 2 April 19, 2024 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 28th Response In its March 28, 2024 response, the Town cited the attorney-client privilege to redact and withhold records. Current appeal In his appeal, Mr. Sayers states, “[r]ecent events have led me to believe that crucial public information is being intentionally withheld or possibly even destroyed by the town administration…” 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). Under the attorney-client privilege, the Town stated, “[p]lease note portions of the responsive records may be redacted and/or withheld pursuant to attorney-client privilege… and/or as required by law, particularly for [Mr. Sayers’] request of communications between [a Selectman] and ‘any attorney at Clifford and Kenny Law’ as such a request exclusively seeks records protected by attorney-client privilege.” 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

Leanne M. Adams SPR24/1033 Page 3 April 19, 2024 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. Further, 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 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. Conclusion Accordingly, the Town is ordered to provide Mr. Sayers 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: John Sayers