Joseph Pecevich v. Marshfield, Town of - Town Administrator (SPR 20241158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1158 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); SPR24/0466 Determination of the Supervisor of Records (February 26, 2024); and SPR24/0885 Determination of the Supervisor of Records (April 5, 2024). In my April 5th determination, I found that the Town had not satisfied the three-part test set out in the Suffolk case, and that the Town must clarify if additional responsive records exist. The Town responded on April 5, 2024. Unsatisfied with the response, Mr. Pecevich petitioned this office and this appeal, SPR24/1158, 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 SPR24/1158 Page 2 May 1, 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 April 5th Response In its April 5, 2024 response, the Town provided additional records and reiterated the attorney-client privilege to redact records. Current appeal In his appeal, Mr. Pecevich states, “[t]he ‘legal advice’ being claimed by the town’s attorney and administrator in their communications should be turned over to me immediately or, at the least be subject to a third-party review.” 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). In the response, the Town states the following: The communications that were identified in the detailed Privilege Log that [the

Michael A. Maresco SPR24/1158 Page 3 May 1, 2024 Town] created on March 10, 2024 for the Town clearly involved attorney-client communications where there were confidential exchanges between the Town Administrator and Town Counsel… an email between an elected Town Administrator and Town Counsel, the Chairman of the Select Board and Town Counsel, the Select Board and Town Counsel, the Vice Chair of the Select Board and Town Counsel. Not only were there emails that [Town Counsel] received from [his] clients as Town Counsel who are the Town officials but included on the Privilege Log were emails where [Town Counsel] sent/gave confidential legal advice to such officials. All such communications to [Town Counsel] were sent to [him] in [his] capacity as Town Counsel, the communications explicitly state that they are confidential in the footer of each such email, and to my knowledge no one has waived any privilege relating to that legal advice that waiver could only come from an express vote of the Select Board. I am informed and believe that the Select Board, which is the holder of the attorney-client privilege, has never voted to waive the attorney client privilege relating to these exchanges. … the attorney client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice. This includes the advice that [Town Counsel] gave to the Town and its officials in the emails referenced in the Privilege Log. [Town Counsel] believe[s] also that this letter clarifies as did the very existence of the Privilege Log that the communications were made in confidence and that there was no waiver… Upon review, the Town has satisfied the requirement 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, because the Town explained that the exchanges were “between the Town Administrator and Town Counsel … an email between an elected Town Administrator and Town Counsel, the Chairman of the Select Board and Town Counsel, the Select Board and Town Counsel, the Vice Chair of the Select Board and Town Counsel.” Further, the communications are “where [Town Counsel] sent/gave confidential legal advice to such officials.” Additionally, the Town has satisfied the requirement that the communications were made in confidence, because the Town explained that “the communications explicitly state that they are confidential in the footer of each such email” and the Town’s April 5th response clarifies “that the communications were made in confidence…” Finally, the Town has satisfied the requirement that the privilege as to these communications has not been waived, because “the Select Board, which is the holder of the attorney-client privilege, has never voted to waive the attorney client privilege relating to these exchanges.” Further, the Town stated that “the communications were made in confidence and that there was no waiver…”

Michael A. Maresco SPR24/1158 Page 4 May 1, 2024 Also, the Town has provided 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 in its April 5th response. Therefore, I find the Town has met its burden to redact the records under the attorney- client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Pecevich 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, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Pecevich