Martha Barrows v. Randolph, Town of - Town Clerk (SPR 20250298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 13, 2025 SPR25/0298 Cheryl Sass Town Clerk & Registrar Town of Randolph 41 South Main Street Randolph, MA 02368 Dear Ms. Sass: I have received the petition of Martha Barrows appealing the response of the Town of Randolph (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2024, Ms. Barrows requested, “[e]mail communications to [an identified individual] [at a specified email address] from [four identified email accounts],” during the listed time frames. Previous appeals and in camera review The request was the subject of previous appeals and a subsequent in camera review. See SPR24/2270 Determination of the Supervisor of Records (August 23, 2024); SPR24/2557 Determination of the Supervisor of Records (September 23, 2024); SPR24/2783 Determinations of the Supervisor of Records (October 22, 2024 and December 4, 2024) and SPR24/3372 Determination of the Supervisor of Records (December 27, 2024). In my December 27th determination, it was my understanding that the Town intended on providing a further response to Ms. Barrows. The Town responded on January 13, 2025. Unsatisfied with the Town’s response, Ms. Barrows petitioned this office and this appeal, SPR25/0298, 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). 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

Cheryl Sass SPR25/0298 Page 2 February 13, 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. 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 13th Response In its January 13, 2025 response, the Town cited attorney-client privilege to withhold one email record. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. The indices shall include 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, § l0A(a). 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).

Cheryl Sass SPR25/0298 Page 3 February 13, 2025 In its response, the Town stated, “[t]he email was made in confidence only to members of the Joint Water Board and the Joint Water Board’s attorney for the purpose of obtaining legal advice ... The email has been maintained confidentially among the Joint Water Board, its attorney and certain employees of the Town of Randolph and Holbrook with a need to know the legal advice provided in response (including the plant manager who sent the email), and has not been shared with third parties. The attorney-client privilege is held by the Joint Water Board and the privilege has not been waived. As such, as set forth in Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007), the email requested is protected by the attorney- client privilege and not required to be provided in unredacted form.” The Town further stated, “[t]he email in question which was provided with the header (showing the sender, recipients, subject line and date sent), was an email sent by the interim plant manager of the Randolph-Holbrook water treatment plant regarding an incident at the water treatment plant for which the plant manager was concerned there may be legal liability on the part of the Randolph-Holbrook Joint Water Board, which oversees the treatment plant. The email was sent to the [identified] town manager for the Town of Randolph and an [identified] member of the Town of Holbrook’s Select Board who sit on the Joint Water Board. The email was also sent to an [identified] attorney who represents the Joint Water Board.” Upon review, I find that the Town has satisfied the elements under Suffolk. See Suffolk, 449 Mass. at 450 n.9. Further, where the Town left the header information intact and has provided the substance of the record in its response, I find the Town has provided a detailed description of the record in accordance with G. L. c. 66, § 10A(a). Consequently, the Town may permissibly withhold the responsive email record under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Barrows is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Martha Barrows