Brooks Read v. Concord, Town of - Town Clerk (SPR 20250728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2025 SPR25/0728 Kaari Mai Tari Town Clerk Town of Concord 22 Monument Square Concord, MA 01742 Dear Clerk Mai Tari: I have received the petition of Brooks Read appealing the response of the Town of Concord (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 17, 2024, Mr. Read requested, “...a copy of the document(s) which [an identified individual] relied upon to support her public statement that ‘. . . the discontinued portion of Estabrook Road . . . is not open to public motor vehicle use.’” Previous Appeal This request was the subject of a previous appeal. See SPR24/3302 Determination of the Supervisor of Records (December 20, 2024). In my December 20th determination, it was my understanding that the Town was to provide a further response to Mr. Read. The Town provided the response on December 30, 2024. Unsatisfied with the Town’s response, Mr. Read petitioned this office and this appeal, SPR25/0728, 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. See 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 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 SPR25/0728 Page 2 March 31, 2025 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 City’s December 30th response In its December 30, 2024 response, the City claimed attorney-client privilege to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Read states, “[w]hile I could understand the Town keeping this Memorandum confidential if it was merely advice, it has in fact been used as a basis for actual police enforcement activity on my private land. This police enforcement activity is occurring on my private land without request or consent from me. I therefore believe I have a legitimate right to know the Memorandum’s content so that I may independently evaluate the legal basis of the police action initiated by the Town, and if warranted, prepare a legal challenge to the Town’s unauthorized and uninvited police actions on my private property.” 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).

Cheryl Sass SPR25/0728 Page 3 March 31, 2025 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 response, the Town stated the following: [i]n making the statement referred to in your request, [an identified individual] relied on a confidential legal memorandum prepared by Town Counsel concerning the Town’s authority to regulate motor vehicle use on public and private ways, and emails between [an identified individual] and Town Counsel discussing the legal advice contained in the memorandum. There is an attorney- client relationship between Town Counsel and the Town. Town Counsel prepared the memorandum in February 2023 at the Town’s request in order to provide legal advice. The Town has maintained the memorandum in confidence, and has not waived the privilege by sharing the memorandum with anyone other than the Town employees and officials responsible for implementing the advice. The emails between [an identified individual] and Town Counsel, which were written in November 2024, likewise sought and provided legal advice, and have been maintained in confidence. These documents are therefore protected by the attorney-client privilege and exempt from disclosure under the Public Records Act. See Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 446 (2007) ... Although the Town has satisfied the requirements in the Suffolk case, I find that the Town must provide a detailed description of the records, 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). Conclusion Accordingly, the Town is ordered to provide Mr. Read with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Mr. Read may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Cheryl Sass SPR25/0728 Page 4 March 31, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Brooks Read