Lyn Robinson v. Blackstone, Town of (SPR 20251087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2025 SPR25/1087 Chad Lovett Town Administrator Town of Blackstone 15 Saint Paul Street Blackstone, MA 01504 Dear Mr. Lovett: I have received the petition of Lyn Robinson appealing the response of the Town of Blackstone (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 14, 2025, Ms. Robinson requested “… the legal opinion from the town’s counsel regarding [an identified individual’s] removal from the Blackstone Housing Authority.” The Town responded on April 17, 2025. Unsatisfied with the response, Ms. Robinson petitioned this office and this appeal, SPR25/1087, 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

Chad Lovett SPR25/1087 Page 2 April 24, 2025 Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Robinson’s purpose in making the request has no bearing on the public status of any existing responsive records. The Town’s April 17th Response In its April 17, 2025 response, the Town stated: Town Counsel provided a legal opinion by email to the Town Administrator on March 27, 2025, which is the subject of your request. Please note that the email was sent in confidence to provide legal advice, and the privilege as to that advice has not been waived by vote of the Board of Selectmen, which is the holder of the attorney-client privilege for the Town of Blackstone. As such, the Town is denying your request for a copy of the legal opinion of Town Counsel because it is protected from disclosure by the attorney-client privilege pursuant to exemption (a) under the Public Records Law and Suffolk Construction v. DCAM, 449 Mass. 444 (2007). Current Appeal In her April 22, 2025 petition to this office, Ms. Robinson stated, “I am appealing this decision because it is no longer a privilege, as it was mentioned during a televised BOS Meeting, and therefore is available for a public records request, regardless of who makes the request or how it is made.” 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.

Chad Lovett SPR25/1087 Page 3 April 24, 2025 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 17th response, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify whether the attorney- client privilege has been waived by any party to the requested communication. 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. Robinson 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. Ms. Robinson 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: Lyn Robinson