Martin Y. Benson v. Acton, Town of - Town Clerk (SPR 20250055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 21, 2025 SPR25/0055 Leo Mercado Deputy Town Clerk Records Access Officer Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Martin Y. Benson appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2022, Mr. Benson requested the following records: [1.] All emails sent or received between [identified individuals], from October 1, 2021 to the present…[;] [2.] All emails, to or from [a named individual], that relates in any way to the ten key words from June 1, 2020 to the present…[;] [3.] All emails, to or from [a named individual], that relates in any way to the five key words; from July 1, 2018 to present…[;] [4.] All police reports that relate to the investigation of Zoom bombing incidents which occurred at school committee meetings on December 17, 2020 and January 7, 2021 as well as the Select Board meeting on January 11, 2021. Previous Appeals This request was the subject of previous appeals. See SPR22/1137 Determination of the Supervisor of Records (May 26, 2022); SPR22/1534 Determination of the Supervisor of Records (July 20, 2022); SPR22/2329 Determination of the Supervisor of Records (October 31, 2022); SPR23/0175 Determination of the Supervisor of Records (February 10, 2023); SPR23/0655 Determination of the Supervisor of Records (April 12, 2023); SPR23/1499 Determination of the Supervisor of Records (July 13, 2023); SPR23/2973 Determination of the Supervisor of Records (December 22, 2023) and SPR24/1166 Determination of the Supervisor of Records (May 2, 2024). In my May 2nd determination, I ordered the Town to provide a further response to Mr. Benson. Subsequently, the Town provided Mr. Benson with numerous written responses, 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

Leo Mercado SPR25/0055 Page 2 January 21, 2025 including on October 2, and October 25, 2024. Unsatisfied with the Town’s responses, Mr. Benson petitioned this office, and this appeal, SPR25/0055, 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 Town’s Responses In multiple responses from October 17, 2022 through October 17, 2024, the Town provides numerous responsive records, and provides two privilege logs listing records withheld pursuant to the attorney-client privilege. Records in Existence; Possession, Custody, or Control Please be advised that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In his appeal petition, among other things, Mr. Benson contends that The Town has the obligation to provide all the records sought from my original request on April 20, 2022, and that town has still not met this legal burden. . . .

Leo Mercado SPR25/0055 Page 3 January 21, 2025 The Town did provide some records in October of 2024. However, most of these emails had already been produced by the town in prior releases. The few new records which were released were of relatively little importance. However, some of the new additional records were simply a more complete version of incomplete chain emails already provided. Thus, illustrating that the Town has purposely been providing incomplete records. There are many more records which the Town is intentionally withholding. In numerous responses, including on September 15, 2022 and December 30, 2022, the Town states that “all other responsive records related to your request have been provided.” In an email to Mr. Benson on October 25, 2024, an attorney for the Town further explains that “I do want to specifically deny that any individual (Town Manager or otherwise) removed any documents from the records collected to my knowledge. Counsel withheld documents on the basis of privilege or the Public records Act exemptions. All of those documents have been listed on the privilege logs you have already been provided.” In a telephone conversation between an attorney for the Town and this office on January 16, 2025, the Town further confirmed that the Town is not withholding any responsive records other than those listed in its privilege logs. Consequently, I find that this portion of Mr. Benson’s appeal is resolved. 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 October 17, 2022 response, the Town provided a privilege log listing four records being withheld pursuant to the attorney-client privilege and indicates “(1) that the communications were received from a client during the course of the client’s search for legal

Leo Mercado SPR25/0055 Page 4 January 21, 2025 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.” Further, in its October 17, 2024 response, the Town provides a “supplemental privilege log” listing an additional 11 records withheld under the attorney-client privilege. Both privilege logs include detailed descriptions of the documents being withheld pursuant to the privilege. In his appeal petition, Mr. Benson contends that “some of the items which Town Counsel has claimed are privileged are in fact no longer eligible to be considered as such as the privilege has been waived.” Where the Town has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the Town has met its burden to withhold the responsive records listed in its October 17, 2022 and October 17, 2024 privilege logs pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Benson 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: Martin Benson Nina Pickering-Cook, Esq.