Martha White v. Hopedale, Town of (SPR 20250254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2025 SPR25/0254 Mitch Ruscitti Town Administrator Town of Hopedale 78 Hopedale Street, P. O. Box 7 Hopedale, MA 01747 Dear Mr. Ruscitti: I have received the petition of Martha White appealing the response of the Town of Hopedale (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 5, 2024, Ms. White requested all written communications sent or received by five named Town employees which discussed the performance of a named former Town employee. Prior Appeal This request was the subject of a prior appeal. See SPR25/3413 Determination of the Supervisor of Records (January 6, 2025). In my January 6th determination, I found that the Town had not met its burden to withhold responsive records in their entirety. The Town provided a response on January 9, 2025. Unsatisfied with the response, Ms. White petitioned this office and this appeal, SPR25/0254, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response on January 28, 2025. 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). 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

Mitch Ruscitti SPR25/0254 Page 2 January 30, 2025 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. Att’y 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 9th Response In its January 9, 2025 response, the Town provided responsive records, redacted to preserve the attorney-client privilege and to obscure information related to ongoing litigation and collective bargaining efforts. Current Appeal In her January 28, 2025 petition to this office, Ms. White objected to the Town’s redactions and reiterated her request for copies of any responsive text messages. In a January 28, 2025 telephone call to this office, the Town confirmed that all responsive records had been provided to Ms. White. In its January 28, 2025 response to Ms. White, the Town clarified the redactions to those records as follows: Exemption D: Attorney client work product and materials protected by attorney client privilege. Information redacted contains information specific to the following active litigation: -Marjorie Clinton et al v. Town of Hopedale, Worcester Superior Court, Civil Action No. 2385CV00037 -Town of Hopedale v. Jon Deli Priscoli, Reilly v. Town of Hopedale, and Grafton & Upton Railroad v. Town of Hopedale Exemption A: The Statutory Exemption: Information was redacted related to ongoing collective bargaining, which is confidential by statute MGL Chapter 150E. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for

Mitch Ruscitti SPR25/0254 Page 3 January 30, 2025 records extends only 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). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its January 28th response, the Town cites G. L. c. 150E, which provides in pertinent part: Home addresses, home and personal cellular telephone numbers, personal email addresses, dates of birth, bargaining units and groupings of employees and emails or other communications between employee organizations and their members shall not be public records and shall be prohibited from disclosure … G. L. c. 150E, § 5A(d). Based on the Town’s response, it is unclear how the responsive records fall within the type of records contemplated in G. L. c. 150E, § 5A(d). The Town merely cites the statute without any further explanation as to the statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The Town must clarify this matter.

Mitch Ruscitti SPR25/0254 Page 4 January 30, 2025 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In this case, the Town has not met its burden to redact the responsive records under Exemption (d). Specifically, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Town has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. Id. 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

Mitch Ruscitti SPR25/0254 Page 5 January 30, 2025 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). Upon review, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify the following with respect to each of the communications it has redacted under the attorney-client privilege: whether the communication was between the Town and its attorney in the attorney’s capacity as such, whether the communication was made in confidence, and whether the privilege has been waived. Conclusion Accordingly, the Town is ordered to provide Ms. White with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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. Ms. White may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Martha White