Geoff Beach v. Acton, Town of - Town Clerk (SPR 20250241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0241 Leo Mercado Town Clerk Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Geoff Beach 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 November 1, 2024, Mr. Beach requested the following records “[r]egarding the attached endorsed Record Plan of a Subdivision, and the associated Certificate of Board Action referenced on said Plan ...”: [1] The completed Application for Approval of Definitive Plan (Form DP in the Town of Acton Subdivision Rules and Regulations). [2] A completed Designer’s Certificate (Form DC in the Town of Acton Subdivision Rules and Regulations). [3] A record of a notice of Public Hearing. [4] A certification of no appeals from the Town Clerk. [5] The entire approved definitive plan of the subdivision as amended by the Board in its decision of approval, as referenced in Town of Acton Subdivision Rules and Regulations Sec. 7.1.1. Please include the entire Contents of the Definitive Plan as listed in Town of Acton Subdivision Rules and Regulations Sec. 5.3 including, but not limited to “the definitive plan … prepared by a registered engineer and land surveyor,” and “storm drainage runoff” calculations used for storm water drainage system design … prepared by and display[ing] the seal of a registered professional engineer. [6] A record of receipt of the entire approved definitive Plan that identifies the recipient and the receipt date. 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 SPR25/0241 Page 2 February 10, 2025 Prior Appeal and Reconsideration The requested records were the subject of a prior appeal and reconsideration. See SPR24/3127 Determination of the Supervisor of Records (December 4, 2024 and January 2, 2025). In my January 2nd determination, I learned that the Town intended to provide a further response to Mr. Beach. The Town responded on January 17, 2025. Unsatisfied with the response, Mr. Beach petitioned this office and this appeal, SPR25/0241, 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 January 17th response In its January 17, 2025 response, the Town stated, “[t]he Town has gathered most of the responsive documents for this request and has put them on a flash drive due to the size of the files. The flash drive is available for pick up at the Town Clerk’s office. There will be a fee of $5.00 for the flash drive due at the time of pick up. The Town is continuing to review many emails with attachments. These emails are more time-consuming and will take an additional two weeks to review and produce them to you, but we wanted to give you what we have for now.” The Town cited attorney-client privilege in support of withholding 181 responsive emails.” Current appeal In his appeal, Mr. Beech states, “I hereby petition the Supervisor to order that the Town provide the records that were requested on November 1, 2024 without further delay.”

Leo Mercado SPR25/0241 Page 3 February 10, 2025 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., Inc. v. Div. of Capital Asset Mmgt., 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 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). Based upon Mr. Beach’s appeal, it does not appear that he is contesting the withholding of the 181 emails pursuant to attorney-client privilege. In a telephone conference between the Town and an attorney at the Public Records Division, the Town advised that the additional records referenced in the Town’s response were provided to Mr. Beach. Conclusion Accordingly, I will consider this administrative appeal closed. Mr. Beach may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach