Steven J. Good v. Marshfield, Town of - Town Administrator (SPR 20241613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2024 SPR24/1613 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Steven J. Good 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 March 22, 2024, Mr. Good requested: [A]ny and all information regarding [an identified address], Marshfield, MA across all town boards and commissions, including all town employees and contractors. Specifically, we request any emails, photographs, internal and external communications, plans, charts, maps, town data associated with the parcel, meeting notes and minutes and any site visit dates and information regarding the purpose of the visit. We request this information between 01/01/2022, approximately 5 months before the property was publicly listed for sale, through the date that the information is returned to the requester. Previous Appeal This request was the subject of a previous appeal. See SPR24/1333 Determination of the Supervisor of Records (May 15, 2024). In my May 15th determination, I ordered the Town to clarify whether it possessed additional records responsive to Mr. Good’s request. The Town provided a further response on May 22, 2024. Unsatisfied with the Town’s response, Mr. Good petitioned this office and this appeal, SPR24/1613, 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 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 SPR24/1613 Page 2 June 12, 2024 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 May 22nd Responses In its May 22, 2024 response, the Town states, “[t]he total count of files/documents submitted, via FOIA Direct, to satisfy request 2024-0049 was 458 items.” The Town also indicates that it intends to withhold and redact numerous records pursuant to the attorney-client privilege. Current Appeal In his appeal petition, Mr. Good states: [T]here are documents that should have been provided in [the Town’s] response that [it] has not turned over. As stated, I am aware of documents, to include a police log that refers to an incident where contractors performing approved work on this property were verbally accosted by neighbors which resulted in a police response. There is no doubt that the town would be aware of this incident, especially since it was touched upon during a town conservation hearing. … We are also missing other complete email chains and attachments. … Additionally, the excessive use of redaction also follows practice that we are unfamiliar with… There are undoubtedly words, names and even full sentences within the redaction that might not be subject to attorney client privilege. Records in Existence; Possession, Custody, or Control 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). Additionally, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5).

Michael A. Maresco SPR24/1613 Page 3 June 12, 2024 In its May 22nd response, the Town explains that it “conducted a second search for any items that are responsive to request 2024-0049 and concluded that the initial compiling of files/documents was a full and complete extract. … [T]he Town … does not possess any additional records responsive to [the request.]” Where the Town has confirmed that it does not possess additional responsive records, I find that this portion of Mr. Good’s appeal is resolved. 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., Inc. v. Div. of Capital Asset Mmgt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & 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. The indices shall include 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, § l0A(a). 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 not inspect the record but 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 explains that “25 items from the initial search were identified by Town Counsel as Attorney Client privilege and not for public release. 3 items contained redactions to protect attorney client privileged information, all 3 items were released to Mr. Good.” Based on its May 22nd response, I find the Town did not meet its burden of specificity in claiming attorney-client privilege to redact and withhold portions of the responsive records. Specifically, the Town must clarify whether the communications were made during the client’s search for legal advice from an attorney in his or her capacity as such, whether the communications were made in confidence, and whether the privilege as to the communications has been waived. Further, the Town must provide an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a).

Michael A. Maresco SPR24/1613 Page 4 June 12, 2024 Conclusion Accordingly, the Town is ordered to provide Mr. Good 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: Steven J. Good