Geraldine Mullaly v. Swansea, Town of - Town Administrator (SPR 20242479)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 17, 2024 SPR24/2479 Mallory E. Aronstein Town Administrator Town of Swansea Town Hall 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: I have received the petition of Geraldine Mullaly appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 11, 2024, Ms. Mullaly requested [1.] The document submitted to Town Counsel as a result of the motion made, seconded, voted, and approved at 07/30/2024, Capital Building Committee meeting. . . . [2.] The document forwarded to [a named individual] by Town Counsel in response to the inquiry in bullet #1, [3.] If the inquiry was made via telephone, please provide a copy (copies) of transcript(s) of the conversation(s) with proof of date(s), time(s), and question(s) asked/answered. [4.] Any document submitted to Town Counsel to seek Town Counsel’s opinion on whether the Committee can approve the use of any funds appropriated in 05/20/2024 STM Article 4 for site planning/design/septic &/or water sketches/ et al for Option 3 (New construction of Town Hall at 68 Stevens Road). [5.] Any document forwarded to [the named individual] by Town Counsel in response to the inquiry in bullet #4, [6.] If the inquiry was made via telephone, please provide a copy(copies) of transcript(s) of the conversation(s) with proof of date(s), time(s), and question(s) asked/answered. 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

Mallory E. Aronstein SPR24/2479 Page 2 September 17, 2024 Previous Petition This request was the subject of a previous petition from the Town. See SPR24/2369 Determination of the Supervisor of Records (August 27, 2024). In my August 27th determination, I found that I could not grant the Town’s petition seeking relief from its obligation to produce responsive records. The Town responded on August 26, 2024, claiming that the responsive records are exempt from disclosure pursuant to the attorney-client privilege. Unsatisfied with the Town’s response, Ms. Mullaly petitioned this office, and this appeal, SPR24/2479, 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. 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 City’s August 26th Response In its August 26, 2024 response, the City states “that responsive documents would be exempt from production and subject to the Attorney-Client and Work Product Privileges.” 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 (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

Mallory E. Aronstein SPR24/2479 Page 3 September 17, 2024 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 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). Based on the Town’s August 26th response, it is unclear which specific records have been withheld pursuant to the attorney-client privilege. Specifically, the Town must provide an index comprised of a detailed description of each record withheld or redacted 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). Further, the Town must clarify whether the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. Conclusion Accordingly, the Town is ordered to provide Ms. Mullaly 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: Geraldine Mullaly