Geoff Beach v. Acton, Town of - Town Clerk (SPR 20251082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1082 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 Appeals This request was the subject of previous appeals. See SPR25/0506 Determination of the Supervisor of Records (March 3, 2025) and SPR25/0756 Determination of the Supervisor of Records (April 2, 2025). In my April 2nd determination, I found that the Town needed to provide a privilege log in accordance with the Public Records Law, and that it was unclear how GCG Associates, Inc. is a necessary agent of the Town. On April 16, 2025, the Town responded. Unsatisfied with the Town’s response, Mr. Beach petitioned this office and this appeal, SPR25/1082, 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). 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 SPR25/1082 Page 2 May 5, 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. The Town’s April 16th Response In its April 16, 2025 response, the Town provided an updated privilege log and stated: The attorney-client privilege protects ‘all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.’ Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 448 (2007). See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302 (2009) (‘Comcast’). See also Mass. G. Evid. § 502(b) (2021). As a general rule, disclosing attorney-client communication to a third party, including outside consultants, undermines the privilege. See Comcast, 453 Mass. at 306. There are, however, exceptions. As the Supreme Judicial Court explained, the attorney-client privilege can shield communications of a third party employed to facilitate communications between the attorney and client, thus assisting the attorney in rendering legal advice to the client. See id. (citation omitted). That is because the presence of a consultant, such as a civil engineer, is necessary for the effective consultation between the client and the attorney which privilege is designed to permit. See id. Stated differently, where the communication with the consultant is made ‘for the purpose of [the client] obtaining legal advice from the lawyer[;]’ the attorney-client privilege attaches. See id. (citation omitted). This derivative privilege undeniably applies here. As you know, GCG is a national civil engineering firm which the Town, and specifically the Planning Board in this case, retains to provide peer reviews of various proposed developments. All 75 emails are related to a developer’s request to release a subdivision surety bond posted by a developer under G.L. c. 41, § 81U and the abutters vociferous objection to that request on the basis of the fact that the stormwater system was not functioning as designed or installed. As Town Counsel, I can unequivocally state that the participation of GCG in the communication was necessary for the ‘effective consultation’ between the Town and its counsel. See Comcast, 453 Mass. at 307 (collecting cases). In these emails, GCG conveyed information about complex and highly technical issues of

Leo Mercado SPR25/1082 Page 3 May 5, 2025 stormwater management that was needed by counsel in formulating legal advice to the Town — specifically, whether there was a factual basis to the abutters’ accusations. See Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002) (recognizing consultation with accountant may be necessary for effective representation); Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614-617 (2007) (holding attorney-client privilege protects made to experts consulted for purpose of facilitating rendition of legal advice). In our second re- review, we confirmed that all 75 previously-withheld emails satisfy the Comcast standard. In addition, per Secretary Arthur’s order, we are providing you a revised privilege log of these emails, describing the substance of each record and the grounds on which the attorney-client privilege is claimed. If you are not satisfied with this response by the Town, you have the right to appeal and seek redress through the Supervisor of Public Records . . ., or through filing an appeal in Middlesex Superior Court. Current Appeal In his appeal petition, Mr. Beach states: In the present Petition, all of the documentation and communication conveyed to Town Counsel was necessarily public record, as it pertained to engineering conditions at a construction site whose completion status was under public review by the Planning Board…. The Town has not addressed whether the communications were intended to remain or do remain confidential, one of the three prongs in establishing common-law attorney-client privilege. As a registered professional engineer, GCG is bound by 250 CMR to disclose all relevant information to the public, eliminating any reasonable expectation of confidentiality in any of the 75 emails…. Furthermore, privilege applies only to communications between attorney and client. Suffolk Construction, 449 Mass. at 448. Numerous withheld emails do not meet this requirement. First, at least four (4) withheld emails … contain no attorney participation whatsoever, rendering the Town’s privilege log claim that they constitute ‘communication between Client and its Attorney’ demonstrably false…. [T]he email listed in the table below includes an ‘outline of questions’ that Town Counsel posed to GCG during public Board testimony on November 19, 2024. Privilege with respect to those questions … was waived by publicly posing them. Moreover, any claim to protection under attorney work product doctrine is no

Leo Mercado SPR25/1082 Page 4 May 5, 2025 longer valid … noting that attorney work product is subject to disclosure once the matter has concluded — as is clearly the case here following the Planning Board’s November 25, 2024 action to release the subdivision bond (Exhibit 6). Likewise, the eight (8) emails on December 18, 2024 involving [a] Conservation Agent … and pertaining to a ‘response to Bumble Bee wetlands question,’ were pursuant to the public statement delivered at the Conservation Commission meeting on December 18, 2024, rendering any possible privilege extinguished. Fourth, after submission of the ‘Bumble Bee Report 121224’ on December 12, 16, 2024 by Mike Carter of GCG (second row of second table, above), the privilege log lists six (6) subsequent email in the chain whose substance is reported as being ‘revisions to Bumble Bee report.’ The Town cannot possibly assert that advising an independent consultant on revisions to his report before its public release constitutes communications from client to attorney seeking legal advice. Finally, I note that the stated purpose of the confidential communications disclosed by Town Counsel in the Response — namely, providing legal advice to the Planning Board regarding the developer’s bond release request — would, by definition, be limited to the period between the submission of the request on October 16, 2024 and the Board’s vote to release the bond on November 25, 2024. Yet of the 75 emails withheld by the Town, only four (4) fall within this timeframe during which the Town claims GCG was engaged in a privileged advisory role…. The Town has failed to substantiate its assertion of derivative attorney-client privilege. GCG was neither a ‘necessary agent’ nor indispensable to confidential communications, and any initial confidentiality has been waived through extensive public disclosures. Moreover, many items in the privilege log are not attorney-client communications at all. Accordingly, I respectfully request that the Supervisor reject the Town’s claims of privilege and order the prompt release of the 75 withheld emails and their attachments pursuant to my December 2, 2024 Request under Massachusetts Public Records Law. 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

Leo Mercado SPR25/1082 Page 5 May 5, 2025 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 April 16th response, the Town has not established how GCG’s role was analogous to “interpreting the client’s otherwise privileged communications or data in order to enable the attorney to understand those communications or that client data.” Comm’r of Revenue, 453 Mass. at 308. Courts have rejected the application of derivative privilege where an attorney’s ability to represent a client is improved, even substantially, by the assistance of a third party. Id. at 307. It is not clear how the content of the communications was such that GCG was nearly indispensable in facilitating legal advice so that Town Counsel could understand the client’s situation. Id. Additionally, the Town must clarify how emails where Town Counsel is not identified were, “[c]ommunication between Client and its Attorney in which the Client is seeking legal advice[,]” as stated in the privilege log. Therefore, I find that the Town has not demonstrated that GCG is a necessary agent, in light of the presumption that government records are public records, of establishing how the withheld emails are protected from disclosure under the derivative attorney-client privilege. See U.S. v. Ackert, 169 F.3d 136, 139 (2nd Cir. 1999) (finding “[a] communication between an attorney and a third party does not become shielded by the attorney-client privilege solely because the communication proves important to the attorney’s ability to represent the client”). The Town must clarify this. 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

Leo Mercado SPR25/1082 Page 6 May 5, 2025 preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach