Geoff Beach v. Acton, Town of - Town Clerk (SPR 20250756)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2025 SPR25/0756 Leo Mercado Town Clerk Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Geoff Beach appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 2, 2024, Mr. Beach requested, “[f]or the period 5/21/2024 through today, [a]ll email correspondence, with attachments, sent to or received from any of the following email addresses: [three listed email addresses] and/or email addresses involving any of the following domains: [four listed domain names.]” Previous Appeal This request was the subject of a previous appeal. See SPR25/0506 Determination of the Supervisor of Records (March 3, 2025). In my March 3rd determination, I learned that the Town intended on providing a supplemental response. On March 13, 2025, the Town responded. Unsatisfied with the Town’s response, Mr. Beach petitioned this office and this appeal, SPR25/0756, 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. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Leo Mercado SPR25/0756 Page 2 April 2, 2025 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 March 13th Response In its March 13, 2025 response, the Town provided a privilege log and states: In the initial response from the Town dated January 17, 2025, one hundred eighty- one (181) emails were withheld citing attorney-client privilege. The Town has re- reviewed these emails and determined that one hundred six (106) previously withheld emails are not privileged and therefore will be released to you. The emails being released are now available for pick up at the Town Clerk’s office. There will be a fee of $5.00 for the flash drive due at the time of pick up. The Town is withholding the remaining seventy-five (75) emails pursuant to attorney-client privilege. It is providing you a privilege log of these emails, attached to this letter. As noted in your appeal, these withheld emails include a third party, which generally waives the attorney client privilege, however, that is not true in all circumstances. Specifically, the SJC has found that the attorney- client privilege protects ‘statements made to or shared with necessary agents of the attorney or the client, including experts consulted for the purpose of facilitating the rendition of such advice.’ Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass 609, 616 (2007). In our re-review, we confirmed that 75 of the 181 emails satisfy that standard. Current Appeal In his appeal petition, Mr. Beach states: Each withheld email involves third-party consultant GCG Associates, Inc. (‘GCG’), an independent contractor that was explicitly not an agent of the Town. GCG’s involvement and subsequent public disclosures waive any privilege that might have otherwise attached…. Crucially, the matters discussed in the withheld emails were extensively disclosed publicly. For example, on November 18, 2024, per the privilege log, Town Counsel sent a detailed list of questions to GCG. These questions were then publicly posed to GCG by Town Counsel during extensive testimony that

Leo Mercado SPR25/0756 Page 3 April 2, 2025 evening, with Town Counsel explicitly concluding she had no additional technical questions. Under state regulations (250 CMR § 5.02), GCG was obligated to fully disclose all relevant technical facts and opinions publicly, thus negating confidentiality. Additional disclosures at public meetings occurred on December 18, 2024 (Conservation Agent) and November 25, 2024 and January 21, 2024 (Town Counsel)…. 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 Suffolk, the Supreme Judicial Court held that “the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.” Suffolk, 449 Mass. at 448. In addition, the Court “state[d] explicitly that confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Id. at 450. Based on the Town’s March 13th response, it is unclear how GCG Associates, Inc. is a necessary agent of the Town. As such, I find the Town must provide additional information regarding the relationship between it and GCG Associates, Inc. and the scope of any such relationship in order to determine whether the Town has met its burden to withhold records under the attorney-client privilege. The Town must clarify this. Further, the Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds

Leo Mercado SPR25/0756 Page 4 April 2, 2025 upon which the attorney-client privilege is being claimed. Although the Town provided the names of the author and recipients, and the subject of the communications, the grounds on which the attorney-client privilege are being claimed and the substance of the communications remain unclear. Pursuant to G. L. c. 66, § 10A(a), the Town must provide additional information in the privilege log regarding the substance of each record, and the grounds on which the attorney- client privilege are being claimed. Conclusion Accordingly, the Town is ordered to provide Mr. Beach 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach