Chris Marden v. Holliston, Town of - Town Clerk (SPR 20243205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3205 Elizabeth Greendale Town Clerk Town of Holliston 703 Washington Street Holliston, MA 01746 Dear Ms. Greendale: I have received the petition of Christopher Marden 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 May 22, 2024, Mr. Marden requested, “all government emails, both sent and received, between the specified individuals surrounding the incident where the Holliston Public Schools refused a dog on a public sidewalk on October 18, 2023.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2273 Determination of the Supervisor of Records (August 23, 2024). In my August 23rd determination, I closed SPR24/2273 in light of the Town providing a supplemental response on August 22, 2024. Unsatisfied with the Town’s response, Mr. Marden petitioned this office, and this appeal, SPR24/3205, 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 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 SPR24/3205 Page 2 December 11, 2024 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. Current Appeal In his appeal petition, Mr. Marden contends that The Town of Holliston has failed to adequately demonstrate that the withheld communications are protected under attorney-client privilege. By disseminating these communications beyond those necessary to facilitate the legal advice, the Town has waived privilege. Additionally, the Town’s denial lacks the required specificity and fails to justify withholding the requested records in compliance with 950 CMR 32.06(3). In an email to this office and the Town on December 1, 2024, Mr. Marden reiterates the arguments in his appeal petition, and further specifies that “there are 4 issues here, 1. Not a narrow enough scope of Attorney-Client Privilege, 2. Dissemination of Waiver of Privilege, 3. Insufficient Justification for withholding, and 4. Public Interest / transparency.” The Town’s Responses In its previous May 31, 2024 response, the Town states the following: All emails up through January 23, 2024 were supplied during a previous Records Request. In that request, 7 emails were withheld due to Attorney Client Privilege with the subject and date of those emails supplied to the requester. . . . 3 additional email chains regarding this incident after January 23, 2024 were extracted from the email system. In addition, 1 email in regards to “general service animals” was identified and extracted along with 2 attachments the Fall River School System sent to a Holliston Public School email address. Lastly, in regards to the previous withheld “Attorney Client” emails, the two email chains were printed and withheld attorney client discussions have been redacted. In additional responses on August 22, 2024 and November 26, 2024, the Town further elaborates on its claims of attorney-client privilege.

Elizabeth Greendale SPR24/3205 Page 3 December 11, 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 August 22nd response, an attorney for the Town explains that [T]he 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. Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 450 n.9 (2007). Here, the entirety of the withheld confidential communications related to Federal ADA Regulations, were made in confidence, have not been provided to third parties, and the privilege has not been otherwise waived. . . . In response to Mr. Marden’s assertion that the emails were disclosed to third parties because they were disseminated throughout the Town, the Town is the client in the relationship and includes all recipients of the email from Town Counsel. The withheld and/or redacted emails were sent to or from Jason Talerman (Town Counsel), Travis Ahern (Town Administrator), Dr Susan Kuskta (Superintendent of Schools), Lisa DiLuzio (Assistant to the Superintendent of Schools), Mark Frank (Parks and Recreation Director), and Sarah Bateman (Veteran Services Director) – all of whom are employees of the Town of Holliston. In an email to this office and Mr. Marden on November 26, 2024, an attorney for the Town further states the following: I would like to clarify that ... the Town employees who received our legal opinion,

Elizabeth Greendale SPR24/3205 Page 4 December 11, 2024 including the Parks and Recreation Director and Veterans Services Director, do in fact conduct public meetings and provide services to the public whereby ADA compliance is required. As such, these individuals fall within the category of people who would receive legal advice from Town Counsel related to their responsibilities under the law. I will reiterate that the privilege has not been waived and the documents requested remain confidential. Based on its responses, although the Town provides some information regarding the nature of these records, it is unclear which specific records have been withheld or redacted pursuant to the attorney-client privilege. Consequently, 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). Conclusion Accordingly, the Town is ordered to provide Mr. Marden 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: Christopher Marden Elizabeth Lydon, Esq.