Dennis J. Naughton v. Foxborough, Town of (SPR 20243420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3420 Robert E. Cutler, Jr. Town Clerk Town of Foxborough 40 South Street Foxborough, MA 02035 Dear Mr. Cutler: I have received the petition of Dennis Naughton appealing the response of the Town of Foxborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2024, Mr. Naughton requested “[a] copy of all correspondence between Commissioner… and/or his agents, and Foxborough Town Counsel regarding my written request of October 15, 2024 for enforcement of the Town’s sign bylaw. My request is intended to include the period of October 15 through November 23, 2024.” The Town responded on November 22, 2024. Unsatisfied with the Town’s response, Mr. Naughton petitioned this office and this appeal, SPR24/3420, 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

Robert E. Cutler, Jr. SPR24/3420 Page 2 January 7, 2025 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 November 22nd Response In its November 22, 2024 response, the Town cited the attorney-client privilege to withhold records and provided a privilege 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 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). In its November 22, 2024 response, the Town cited the attorney-client privilege and provided a privilege log. When citing the attorney-client privilege the Town stated the following: Please be advised the Town is withholding all responsive records in accordance with attorney-client privilege. Confidential communications between the Town and Town Counsel undertaken for the purpose of obtaining legal advice or assistance are protected from disclosure by attorney client privilege… Accordingly, the Town has withheld responsive email communications between Town Counsel… and Commissioner… because (1) said communications occurred during the Town’s search for legal advice from Town Counsel in his capacity as such; (2) said communications were made in confidence; and (3) the privilege as to said communication has not been waived… Attached is a privilege log supporting the Town’s claim of attorney client privilege.

Robert E. Cutler, Jr. SPR24/3420 Page 3 January 7, 2025 Current Appeal In his appeal, Mr. Naughton states, “I acknowledge the argument by [the Town] regarding the principle of attorney-client privilege. However, if that principle is permitted to be invoked so broadly, in such a benign case as enforcement of a local sign regulation bylaw, it makes a mockery of the intent of the public records law. I cannot see what harm could accrue to the Town of Foxborough by releasing the document I have request. I simply want to determine if the documents corroborate [a named individual]’s verbal statement to me that he had been advised that part of the Code that I had asked him to enforce was not legally enforceable because it violates the First Amendment.” 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 “said communications occurred during the Town’s search for legal advice from Town Counsel in his capacity as such[.]” Further, the Town has satisfied the requirement that the communications were made in confidence, because the Town explained that “said communications were made in confidence[.]” Finally, the Town has satisfied the requirement that the privilege as to these communications has not been waived, because it stated that “the privilege as to said communication has not been waived.” Also, the Town has provided 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 in its November 22nd privilege log. Therefore, I find the Town has met its burden to withhold records under the attorney- client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Naughton is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Dennis Naughton