Deborah S. Skauen-Hinchliffe v. Harvard, Town of - Town Clerk (SPR 20251162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2025 SPR25/1162 Rose M. Miranda Town Clerk Town of Harvard 13 Ayer Road Monson, MA 01451 Dear Ms. Miranda: I have received the petition of Deborah Skauen-Hinchcliffe appealing the response of the Town of Harvard (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 16, 2025, Ms. Skauen-Hinchcliffe requested copies of communications between two identified individuals “… concerning the Open Meeting Law complaint against [an identified individual] that was discussed and decided at the 15 April 2025 Select Board meeting.” The Town responded on April 17, 2025. Unsatisfied with the response, Ms. Skauen-Hinchcliffe petitioned this office and this appeal, SPR25/1162, 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. 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

Rose M. Miranda SPR25/1162 Page 2 May 1, 2025 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 17th Response In its April 17, 2025 response, the Town provided Ms. Skauen-Hinchcliffe with a copy of its response to the referenced Open Meeting Law complaint. The Town further stated “[c]ommunications with counsel are exempt from disclosure due to attorney client privilege.” Current Appeal In her April 28, 2025 petition to this office, Ms. Skauen-Hinchcliffe stated, “[b]ecause town counsel’s opinions were brought up by [an identified individual] in a public meeting, the records relating to her consultation(s) must be consider [sic] public record and are not entitled to be treated as privileged information.” 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 17th response, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify whether the requested communications were between the Town and its attorney in the attorney’s capacity as such, whether the communications were made in confidence, and whether the attorney-client privilege has been waived with respect to each of the communications. The Town must also provide a privilege log which includes the names of the author and recipients, the date, the substance of

Rose M. Miranda SPR25/1162 Page 3 May 1, 2025 such records, 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. Skauen-Hinchcliffe 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. Skauen-Hinchcliffe 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: Deborah Skauen-Hinchcliffe