Roxanne Gunther v. Monson, Town of - Town Clerk (SPR 20251010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2025 SPR25/1010 Mary F. Watson Town Clerk Town of Monson 110 Main Street Monson, MA 01057 Dear Ms. Watson: I have received the petition of Roxanne Gunther appealing the response of the Town of Monson (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 1, 2025, Ms. Gunther requested “… a letter from Town Counsel regarding the request for stained glass windows for . . . Main Street.” The Town provided a response on April 11, 2025. Unsatisfied with the response, Ms. Gunther petitioned this office and this appeal, SPR25/1010, 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. 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. 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

Mary F. Watson SPR25/1010 Page 2 April 18, 2025 The Town’s April 11th Response In its April 11, 2025 response, the Town stated, “[o]ur Town Counsel has advised that this is not a public document, and the document requested falls under attorney client privilege.” Current Appeal In her April 11, 2025 petition to this office, Ms. Gunther stated, “… in my opinion, once [the requested record] was sent to the committee as part of their package and some of it was read out loud, it becomes public record and should be available to the public if requested.” 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). Based on the Town’s April 11th response, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify whether the requested 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 attorney-client privilege has been waived. The Town must also provide a privilege log which includes 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, as required by G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Ms. Gunther 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

Mary F. Watson SPR25/1010 Page 3 April 18, 2025 preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Gunther 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: Roxanne Gunther