Jon Slater v. Truro, Town of - Town Clerk (SPR 20243303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2024 SPR24/3303 Noelle Scoullar Executive Assistant Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Jon Slater appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2024, Mr. Slater requested, “any and all public communications (including texts, documents, notes, emails, mail and conversation notes) initiated and/or received between May 1, 2024 and August 19, 2024 that are held by the Town of Truro in which [a named individual] is a recipient, sender, or his name is in the title, message or attachments in such communications are found…” The Town provided responses on August 29, September 23, October 8, and November 7, 2024. Unsatisfied with the responses, Mr. Slater petitioned this office and this appeal, SPR24/3303, 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 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

Noelle Scoullar SPR24/3303 Page 2 December 18, 2024 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 Responses In its August 29, 2024 response, the Town provided a fee estimate of $39.00, which was paid by Mr. Slater on September 3, 2024. In its September 23, 2024 response, the Town provided records and provided a privilege log to withhold additional records. In its October 8, 2024 response, the Town provided additional records responsive to the request. In its November 7, 2024 response, the Town stated, “[the Town] is working on this. I cannot estimate when [Mr. Slater] will hear back.” Current Appeal In his appeal, Mr. Slater states the following: [f]iled on August 20, the Town acknowledged receipt of the money they requested to fulfill this request on September 3. Despite promises of follow-up, I have received no additional documents or even an explanation as to why they are being withheld… The Town was asked for and acknowledged the date parameters for the documents requested. However, the production that was sent is missing an entire year of that period. Despite repeated reminders regarding this deficiency, nothing has been received for this missing period. I was simply sent a note weeks ago that the Town Manager would be in touch with me… It is obvious from the documents produced for even the limited time period sent that whole categories of requested communications are missing… Absolutely no documents from or referencing [a named individual] were included even in the documents produced… the Town is improperly withholding documents that are to or from third parties who are either not attorneys or are not attorneys for the Town… In addition, the privilege log sent does not fulfill the standard requirements of such a log[.] 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

Noelle Scoullar SPR24/3303 Page 3 December 18, 2024 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 (2017); 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). Under the attorney-client privilege, the Town provided a privilege log. I find that the Town has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Town must clarify 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 and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Although the Town provided the names of the individuals, the author and recipients, the grounds on which the attorney-client privilege are being claimed, and the subject of the communications, the substance of the communications remains unclear. As such, the Town must provide the substance of the communications. Additionally, in light of Mr. Slater’s appeal, it is unclear if the Town possesses additional records that may be responsive to the request. 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). To the extent that responsive records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Slater with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Noelle Scoullar SPR24/3303 Page 4 December 18, 2024 within ten 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: Jon Slater