Chris Marden v. Holliston, Town of - Town Clerk (SPR 20250968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 23, 2025 SPR25/0968 Elizabeth Greendale Town Clerk Town of Holliston 703 Washington Street Holliston, MA 01746 Dear Ms. Greendale: I have received the petition of Christopher Marden appealing the response of the Town of Holliston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2024, Mr. Marden requested, “all government emails, both sent and received, between the specified individuals surrounding the incident where the Holliston Public Schools refused a dog on a public sidewalk on October 18, 2023.” Previous Appeals This request was the subject of previous appeals. See SPR24/2273 Determination of the Supervisor of Records (August 23, 2024) and SPR24/3205 Determination of the Supervisor of Records (December 11, 2024). In my December 11th determination, I ordered the Town to clarify its claims under the attorney-client privilege. Subsequently, the Town responded to Mr. Marden on January 8, 2025, and again on April 9, 2025. Unsatisfied with the Town’s responses, Mr. Marden petitioned this office, and this appeal, SPR25/0968, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response on April 10, 2025. 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). 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

Elizabeth Greendale SPR25/0968 Page 2 April 23, 2025 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. Current Appeal In his appeal petition, among other things, Mr. Marden argues the following: The Town has not demonstrated that these communications constitute confidential legal advice exchanged between attorney and client. In fact, many of the emails identified in the privilege log involve no direct correspondence from or to legal counsel at all, and merely include legal counsel as a carbon copied recipient. The presence of an attorney on communication is not dispositive. Simply copying legal counsel on an email does not invoke attorney-client privilege, especially where there is no indication that the purpose of the communication was to solicit legal advice. It’s the town’s burden to affirmatively show that each record meets the narrow criteria for exemption[.] The communications in question concern enforcement of public access policies— specifically, ADA compliance—by public officials. As such, they implicate core public rights and the duties of public servants. Even assuming the topic touches on legal issues, this does not cloak policy discussions in privilege, and instead heightens the public interest in disclosure. The Town’s Responses In its January 8, 2025 and April 9, 2025 responses, the Town refers back to its previous responses, and provides a privilege log which the Town notes it had previously provided to Mr. Marden, listing seven emails which were redacted pursuant to the attorney-client privilege. The Town also indicates that it had previously provided the emails in redacted form. In its previous May 31, 2024 response, the Town states that “all emails up through January 23, 2024 were supplied during a previous Records Request. In that request, 7 emails were withheld due to Attorney Client Privilege with the subject and date of those emails supplied to the requester.” The Town provided additional information concerning the redacted emails in its August 22, 2024 response.

Elizabeth Greendale SPR25/0968 Page 3 April 23, 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 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 8th and April 9th responses, the Town provides a privilege log listing seven emails “subject to attorney client privilege.” The Town also indicates that it previously provided the emails listed in it privilege log, in redacted form. Additionally, in its previous August 22nd response, an attorney for the Town explains the following: [T]he withheld emails are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (e.g., the Town) undertaken for the purpose of obtaining legal advice or assistance on matters of law. Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 450 n.9 (2007). Here, the entirety of the withheld confidential communications related to Federal ADA Regulations, were made in confidence, have not been provided to third parties, and the privilege has not been otherwise waived. . . . In response to Mr. Marden’s assertion that the emails were disclosed to third parties because they were disseminated throughout the Town, the Town is the client in the relationship and includes all recipients of the email from Town Counsel. The withheld and/or redacted emails were sent to or from Jason Talerman (Town Counsel), Travis Ahern (Town Administrator), Dr Susan Kuskta (Superintendent of Schools), Lisa DiLuzio (Assistant to the Superintendent of Schools), Mark Frank (Parks and Recreation Director), and Sarah Bateman (Veteran Services Director) – all of whom are employees of the Town of Holliston.

Elizabeth Greendale SPR25/0968 Page 4 April 23, 2025 In this case, although portions of the emails were redacted, the Town has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the authors and recipients, and information regarding the subject of each email. Based on the information included in the redacted emails, in conjunction with the information provided in the Town’s privilege log, and the explanations provided in the Town’s January 8th, April 9th, and August 22nd responses, I find that the Town has met its burden to redact the emails listed in its privilege log pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Marden is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Marden Elizabeth Lydon, Esq.