Cynthia Bourcier v. Ware, Town of - Town Clerk (SPR 20250561)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 11, 2025 SPR25/0561 Nancy Talbot Town Clerk and Records Access Officer Town of Ware 126 Main Street Ware, MA 01082 Dear Ms. Talbot: I have received the petition of Cynthia Allen Bourcier appealing the response of the Town of Ware (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). From September 4, 2024 through October 29, 2024, Ms. Bourcier made numerous requests for records. On December 28, 2024, Ms. Bourcier clarified her requests as follows: [1] Copies of all documents in the possession of the Town of Ware since the beginning of 2021 concerning Mary Lane Hospital, Baystate Health or Bank of America. [2] Copies of all documents in the possession of the KP Law, town counsel, since the beginning of 2021 concerning Mary Lane Hospital, Baystate Health or Bank of America. Previous Appeal This request was the subject of a previous appeal. See SPR24/3446 Determination of the Supervisor of Records (January 13, 2025). In my January 13th determination, I ordered the Town to provide a response to Ms. Bourcier’s request. Subsequently, the Town responded on January 13, 2025. Unsatisfied with the Town’s response, Ms. Bourcier petitioned this office, and this appeal, SPR25/0561, 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 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

Nancy Talbot SPR25/0561 Page 2 March 11, 2025 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 13th Response In its January 13, 2025 response, the Town states that it is withholding numerous records under the attorney-client privilege, and provides a privilege log. See G. L. c. 66, § 10A(a); 950 C.M.R. 32.06(3)(d). 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 January 13th response, the Town provides a privilege log listing approximately fourteen records. For each record, the Town provides the date, the name of the recipients and author, a brief description of the contents, and the grounds upon which the attorney-client privilege is being claimed. The Town also explains the following:

Nancy Talbot SPR25/0561 Page 3 March 11, 2025 [M]any responsive records contain communications in which the Town sought confidential legal advice on the Mary Lane Hospital issue, and in which Town Counsel provided confidential legal advice. That privilege has not been waived by disclosure to a third party or otherwise. As such, the records are exempted from disclosure pursuant to the public records law and will not be provided at this time. See Suffolk Const. Co., 449 Mass. at 448. Where the Town has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author 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 records listed in its January 13th privilege log 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). 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). However, 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). In its January 13th response, the Town states the following: As previously noted, the Town is currently reviewing the material between KP Law (Town Counsel) and Town Officials as requested. Where required or permitted by law, however, certain records or material contained therein may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege. In her appeal petition, Ms. Bourcier contends that: [T]he town’s last response only mentioned emails as old as June 2023. My request is for documents from 2021 and on. Specifically I am looking for copies of documents such as, original deed information, Baystate lawyer’s analysis of Gilbert trust, lawyer review of who owns the property, other deed transaction information, town economic development plan of the property, etc. Based on the Town’s January 13th response, and the information provide in Ms. Bourcier’s appeal petition, it is unclear whether the Town possesses additional records responsive to Ms. Bourcier’s request. If the Town does possess additional responsive records, it

Nancy Talbot SPR25/0561 Page 4 March 11, 2025 must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Town is ordered to provide Ms. Bourcier with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Cynthia Allen Bourcier