Jason Graziadei v. Nantucket, Town of - Town Administration (SPR 20242583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2024 SPR24/2583 Maureen Coleman Records Access Officer Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Coleman: I have received the petition of Jason Graziadei, of the Nantucket Current, appealing the response of the Town of Nantucket (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2024, Mr. Graziadei requested “all records in possession of the town of Nantucket documenting all Nantucket Select Board executive session minutes in which the Good Neighbor Agreement with Vineyard Wind was discussed prior to August 28, 2020.” The Town responded on September 13, 2024. Unsatisfied with the Town’s response, Mr. Graziadei petitioned this office, and this appeal, SPR24/2583, 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. 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

Maureen Coleman SPR24/2583 Page 2 September 26, 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 September 13th Response In its September 13, 2024 response, the Town states that it is withholding “two sets of executive session minutes” pursuant to the Open Meeting Law as it operates through Exemption (a) of the Public Records Law, and also pursuant to Exemption (d) of the Public Records Law, and the attorney-client privilege. See G. L. c. 4, § 7(26)(a), (d); G. L. c. 30A, § 22(f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its September 13th response, the Town argues the following under Exemption (a) and the Open Meeting Law: Town staff diligently searched for responsive records and identified two sets of executive session minutes in which the Good Neighbor Agreement with Vineyard Wind was discussed: July 20, 2020 and August 26, 2020. Because the Select Board had not voted to release the minutes, on September 12, 2024, the Select Board met pursuant to the Open Meeting Law, G.L. c. 30A, § 22(f), to review the

Maureen Coleman SPR24/2583 Page 3 September 26, 2024 executive session materials to determine whether they could be disclosed. The Select Board determined that the executive session minutes of July 20, 2020 and August 26, 2020, and documents used thereat, would be “withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty- sixth of section 7 of chapter 4, [because] publication may defeat the lawful purposes of the executive session,” which was held in compliance with G.L. c. 30A, § 21. Specifically, the purpose of the executive sessions remains ongoing, such that the negotiating and litigating position of the Town would be harmed by disclosure at this time. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its September 13th response, under Exemption (d), the Town argues that “executive session materials may be withheld pursuant to exemption (d) to the Public Records Law, G.L. c. 4, § 7(26)(d), as they contain deliberative materials ‘relating to policy [and legal] positions being developed’ by the Select Board and attorney work product.”

Maureen Coleman SPR24/2583 Page 4 September 26, 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. 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. 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). In its September 13th response, under the attorney-client privilege, the Town argues the following: [E]xecutive session materials also may be withheld because they contain attorney- client privileged information. ... In this regard, Town Counsel and Special Counsel attended both executive sessions to advise the Board with respect to specific legal questions concerning the Good Neighbor Agreement with Vineyard Wind and that privilege has not been waived. Current Appeal In his appeal petition, Mr. Graziadei, contends the following: [T]he executive session is now over. The document was negotiated, signed by both parties, and the document was released to the public. This happened over four years ago. The matter of how and why this agreement came to be has concluded, and given the extensive time that has passed (four years) the minutes from those executive sessions should be released. Open Meeting Law The Town’s response and Mr. Graziadei’s appeal petition raise issues related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to

Maureen Coleman SPR24/2583 Page 5 September 26, 2024 contact the AGO for a determination on the status of the executive session minutes. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jason Graziadei