Amy M. Belger v. Holliston, Town of - Town Clerk (SPR 20241242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2024 SPR24/1242 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 SPR24/1242 Page 2 May 8, 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. Prior Appeal This request was the subject of a prior appeal. See SPR24/0903 Determination of the Supervisor of Records (April 9, 2024). In my April 9th determination, I found that the Town did not meet its burden to withhold portions of the responsive records under the attorney-client privilege. The Town responded on April 9 and April 24, 2024. Unsatisfied with the responses, Attorney Belger petitioned this office and this appeal, SPR24/1242, 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. The Town’s Responses In its previous response on March 12, 2024, 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 another response on March 25, 2024, 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 SPR24/1242 Page 3 May 8, 2024 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.” In its April 9, 2024 response, the Town provided an updated privilege log specifying the names of the recipients on the withheld communications In its April 24, 2024 response, the Town resent the updated privilege log and stated, “[t]he Town previously clarified that all correspondence was protected under attorney-client privilege as it related to the request for legal advice related to the flag policy and recent case law, and the privilege had not been waived.” Current appeal In her appeal, Attorney Belger states, “I maintain that any claim of privilege as to the records I have requested is questionable… 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… Communications about the development of a flag policy that impacts the free speech rights of the citizens that town officials are supposed be serving in no way constitutes confidential communications with attorneys. Town officials do not have a right to withhold and hide from public sight communications with attorneys over the development of a flag policy to comply with a recently decided Supreme Court decision.” 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

Elizabeth Greendale SPR24/1242 Page 4 May 8, 2024 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). 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 communications “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.” Further, the Town has satisfied the requirement that the communications were made in confidence, because the Town explained in its April 1, 2024 email that “the entirety of the withheld confidential communications related to the development of the flag policy, were made in confidence…” Finally, the Town has satisfied the requirement that the privilege as to these communications has not been waived, because the withheld communications “have not been provided to third parties, and the privilege has not been otherwise waived.” 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 9th privilege log. Therefore, I find the Town has met its burden to withhold records under the attorney- client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Belger 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: Amy M. Belger, Esq. Travis J. Ahern Elizabeth Lydon, Esq.