Amanda Alix v. Shutesbury, Town of (SPR 20250874)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2025 SPR25/0874 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road, P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 12, 2024, Ms. Alix requested: [1] Zoom recording links for the 10/22/24 6:00 p.m. Select Board meeting and the 10/24/24 7:00 p.m. Conservation Commission meeting; [2] Executive session meeting minutes from the 10/24/23 Select Board meeting concerning a complaint filed against the Town Administrator; [3] Executive Session minutes from the following Select Board meetings concerning contract negotiations with the Town Administrator: 11/8/23; 12/5/23; 3/11/24; 3/27/24; 5/8/24; 5/20/24; 6/5/24; 6/17/24; 6/25/24. [4] Executive Session minutes regarding a letter by ‘[an identified] Attorney on behalf of a Board member’ at the 12/5/23 Select Board meeting; [5] All written communications by [identified] Attorneys regarding and in response to the letter by [an identified] Attorney. Previous Appeal This request was the subject of a previous appeal. See SPR25/0547 Determination of the Supervisor of Records (March 6, 2025). In my March 6th determination, I found that it was unclear how Item 4 could be withheld under Exemption (c) of the Public Records Law. 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

Grace Bannasch SPR25/0874 Page 2 April 9, 2025 Town responded on March 12, 2025. Unsatisfied with the Town’s response, Ms. Alix appealed, and this case, SPR25/0874, 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. 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. Current Appeal In her appeal petition to this office, Ms. Alix states, “I have not received any records from the Town of Shutesbury in response to appeal determination SPR25-0547. I assume that the Town’s email dated March 12 is not an adequate response since it contained no requested records and addressed the Division rather than me.” The Town’s March 12th Response In its March 12, 2025 response, the Town states regarding Item 4 that it is withholding the December 5, 2023 executive session minutes of the Shutesbury Selectboard pursuant to the attorney-client privilege. 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., Inc. v. Div. of Capital Asset Mmgt., 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

Grace Bannasch SPR25/0874 Page 3 April 9, 2025 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). Under the attorney-client privilege, the Town states: Town Counsel has reviewed the executive session minutes in question, and has advised against releasing these minutes at this time due to attorney-client privilege. The executive session in question was held to discuss with General Town Counsel and Labor Counsel strategies and responses to a letter received from the personal attorney of a town official, threatening litigation against the town and making sensitive accusations against numerous town employees which included references to sensitive medical information. The statute of limitations has not expired on this claim and there is still the potential for litigation to be pursued in this matter. Therefore the Town still has an interest in protecting attorney/client communications regarding this pending litigation. Reference is made to A Guide to the Massachusetts Public Records Law, page 32, Attorney- Client Communications and Attorney Work Product. Based on its March 12th response, I find the Town has not met its burden in responding to this request. Specifically, the Town must provide an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Town must clarify whether the communications were made during the client’s search for legal advice from an attorney in his or her capacity as such, whether the communications were made in confidence, and whether the privilege as to the communications has been waived. Conclusion Accordingly, the Town is ordered to provide Ms. Alix 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.

Grace Bannasch SPR25/0874 Page 4 April 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix