Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20241734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1734 Angela Jack Town Clerk Town of Ashby 895 Main Street Ashby, MA 01431 Dear Ms. Jack: I have received the petition of Patrick McPhee appealing the response of the Town of Ashby (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 14, 2024, Mr. McPhee requested, “…the minutes, documents and video from February 1, 2024 to today. Draft is acceptable.” The Town provided a response on May 31, 2024. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and this appeal, SPR24/1734, was opened as a result. Subsequently, on June 11, 2024, the Town provided a supplemental response, which Mr. McPhee appealed on June 11, 2024. 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. See 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

Angela Jack SPR24/1734 Page 2 June 25, 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 May 31st response In its May 31, 2024 response, the Town stated that records were withheld in their entirety pursuant to attorney-client privilege. In its June 11, 2024 response, the Town provided a redacted version of the record. Current Appeal In his appeal, Mr. McPhee stated: The public record complete content can’t be withheld under attorney-client privilege, as the attorney cited…. The Meeting minutes need to include the following: [1] The start time of the executive session meeting (this is not attorney-client privilege)[;] [2] The end time of the executive session meeting (this is not attorney-client privilege)[;] [3] Public official’s names and the name of anyone else who attended the meeting, including the attorney, (this is not attorney-client privilege)[;] [4] I should get the case number…: court case number, un-employment case name, retirement board case number and MCAD case number, etc. case number. Or how ever you’re defining this is a legal case, (this is not attorney-client privilege)[;] [5] Is there a mediator involved, you need to list this person (required by OML)[;] [6] I am not asking for your attorney-client discussion[;] [7] …the public needs to know how the attorney is doing on representing the town and if the board is making good determinations. Given the history of no transparency by this board, I am concerned there might be a settlement with a friend (then there would be a conflict of interest)[;] [8] … there is… an evolving privilege log (per the division of capital asset management case) and monetary agreements that is of public interest. In response to the Town’s June 11, 2024 supplemental response, Mr. McPhee stated, “I do wish the requirements of the cases they cited was followed[:] [1] being case number[; and] [2] log of document and why attorney-client confidence.”

Angela Jack SPR24/1734 Page 3 June 25, 2024 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, 450 n.9 (2007); 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). Citing attorney-client privilege in its May 31, 2024 response, the Town states the following: Although it is not specified in your written request, I am treating your request as concerning meetings of the [Town] Select board.… On May 8, 2024 the Select board reviewed and approved the draft meeting minutes from the executive session held on February 1, 2024. On May 30, 2024, the Select Board reviewed the approved minutes for purposes of determining if the minutes may be released to the public in accordance with the Massachusetts Open Meeting Law…. The approved meeting minutes from the cited executive session consist entirely of privileged attorney-client communications between the Select Board and the Town’s Labor Counsel. The Select Board has not waived its attorney-client privilege concerning this document. Therefore, the minutes from that executive session are confidential and not available as a public document…. The minutes from the executive session from February 1, 2024 are a record of: [1] a communication received from counsel (the Town’s Labor Counsel) during the course of a client’s (in this case, the Select Board’s) search for legal advice from the Town’s Labor Counsel, in her capacity as such; [2] the communication was made in confidence; and [3] the privilege as to this communication has not been waived. In its June 11, 2024 supplemental response, the Town provided a redacted copy of the February 1, 2024 executive session minutes.

Angela Jack SPR24/1734 Page 4 June 25, 2024 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 contents of the meeting consist entirely of attorney-client communications between the Town’s Select Board and the Town’s Labor Counsel. Further, the Town has satisfied the requirement that the communications were made in confidence, and has satisfied the requirement that the privilege as to these communications has not been waived. Further, in its June 11, 2024 response, the Town provided a redacted record, which satisfies the privilege log requirement under G. L. c. 66, §10A(a). Therefore, I find that the Town has met its burden to withhold the record(s) under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee