Jean Krulic v. Truro, Town of - Town Clerk (SPR 20250648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2025 SPR25/0648 Angie Sprang Records Access Officer Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Sprang: I have received the petition of Jean Krulic appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2024, Ms. Krulic requested 17 categories of records relating to certain investigations, land transactions, and identified individuals. Prior Appeal and Petition This request was the subject of a prior appeal and time petition. See SPR24/1029 Determination of the Supervisor of Records (April 19, 2024) and SPR24/2489 Determination of the Supervisor of Records (September 9, 2024). In my April 19th determination, I ordered the Town to revise its fee estimate or provide further explanation of how its assessed fee was expressly provided for and consistent with G. L. c. 66, § 10(d). In my September 9th determination, I found that where the Town had not submitted a timely petition, an extension of time could not be granted. The Town provided responses on October 1, 2024, December 19, 2024, December 20, 2024 and January 8, 2025. Unsatisfied with the responses, Ms. Krulic petitioned this office and this appeal, SPR25/0648, 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 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

Angie Sprang SPR25/0648 Page 2 March 20, 2025 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. 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 Responses In its October 1, 2024 response, the Town provided Ms. Krulic with responsive records and withheld approximately 480 email communications, citing the attorney-client privilege and stating “Confidential Employee Information,” “Confidential Employee Paperwork,” and “Not Public Information.” The Town provided a privilege log to justify its claims. In its December 19, 2024 responses, the Town informed Ms. Krulic that it would conduct a further review to confirm that all of the withheld records were exempt from disclosure. In its December 20, 2024 response to an inquiry from Ms. Krulic, the Town clarified that materials related to executive session had not been approved for release. In its January 8, 2025 response, the Town provided Ms. Krulic with two additional responsive records, and stated that it would continue to withhold the remainder of the records identified in its privilege log. Current Appeal In her March 7, 2025 petition to this office, Ms. Krulic objected to the withholding of responsive records and the substance of the Town’s privilege log. Open Meeting Law – Executive Session The Town’s response on December 20th raises issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address these issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the Office of the Attorney General for a determination on the status of any executive session materials that may be responsive to the request.

Angie Sprang SPR25/0648 Page 3 March 20, 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. 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 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 withheld 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. Further, the Town must provide the names of all parties who received each of the withheld communications. Additionally, based on the Town’s response, it is unclear which exemption the Town is citing in order to withhold certain records. For example, the Town has withheld certain communications as “Confidential Employee Information,” “Confidential Employee Paperwork,” and “Not Public Information.” 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Krulic 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.

Angie Sprang SPR25/0648 Page 4 March 20, 2025 Krulic 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: Jean Krulic