Frederick B. Goldsmith v. Truro, Town of - Town Clerk (SPR 20251176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2025 SPR25/1176 Angie Sprang Records Access Officer Consultant Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Sprang: I have received the petition of Frederick Goldsmith appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 4, 2024, Mr. Goldsmith requested records related to “the Residential Tax Exemption (RTE) since its initial adoption in Truro in the Fall of 2017. Please produce the following:” [1] The list, by each year since the inception of the RTE in Truro in 2017, of those residential properties that received the Residential Tax Exemption in Truro, specifying address and ownership in each year. [2] The list, by each year since the inception of the RTE in Truro in 2017, of each and all abatements for tax relief granted according to the type of tax abatement granted. [3] The usage rate of the RTE exemption for each year since its inception in Truro. [4] The Average Residential Parcel Value (ARPV) upon which the RTE was determined for each year since its inception. [5] The resulting actual tax abatement amount for each residential exemption granted for each year since its inception. [6] The tax rate(s) for each year since the inception of the RTE, including the ‘single’ rate, the adjusted RTE ‘recipients’ ‘rate’; and the ‘part-timers’ rate, that is, the rate per thousand of those who absorbed the RTE tax shift in each fiscal year. [7] All reports, studies, memos, correspondence, e-mails, and/or other documents or records regarding RTE usage, its effectiveness, or efforts to study or analyze its effectiveness in Truro. [8] Any summary reports, studies, memos, correspondence, e-mails, or other 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

Angie Sprang SPR25/1176 Page 2 May 9, 2025 documents or records from 2016 to the present addressing or concerning alternatives used by other towns to adopt means-tested RTEs, to use alternative forms of tax relief available through the Commonwealth of Massachusetts, and/or other tax abatement options which were reviewed or discussed by Town officials and informally or formally adopted, proposed for further action, or rejected by the Select Board. The Town provided a fee estimate on October 7, 2024 for $275, which Mr. Goldsmith paid. The Town then responded on February 3, 2025, providing a privilege log withholding 156 emails under attorney-client privilege and executive session. Unsatisfied with the response, Mr. Goldsmith petitioned this office and this appeal, SPR25/1176, 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. The Town’s February 3rd Response In its February 3, 2025 response, the Town provided a privilege log. In the privilege log, the Town cites attorney-client privilege for withholding 137 emails and executive session for withholding 19 emails. Current Appeal In his appeal, Mr. Goldsmith states the following: I write to respectfully appeal the Town of Truro’s response to my Public Records Request, specifically the legal sufficiency of its privilege log, provided to me on February 3, 2025. Thus, this appeal is within the 90 day time period and is timely.

Angie Sprang SPR25/1176 Page 3 May 9, 2025 I am appealing the Town’s response to my subject PRR because the privilege log lacks sufficient detail, specifically the substance of the communications and the grounds upon which the attorney-client and executive session materials privileges have been invoked, for me to determine if (1) the claimed attorney-client privilege, invoked as to 137 e-mails, and (2) the ‘Executive Session Material’ privilege, invoked as to 19 e-mails, have been properly invoked. For instance, as to the attorney-client privilege, I am aware that [an identified individual] is a Town employee who serves as both the Town Planner and the Town’s Land Use Counsel. It is not clear, however, from the face of the privilege log, in which capacity she was serving as to any privilege claim with regard to any particular e-mail. It is also unclear if the claimed attorney-client privileged e-mails are actually communications in confidence between an attorney and client, or whether the attorney (acting as such) is merely copied on an e-mail or included among several recipients. It is also unclear from the face of the Town’s privilege log, if any of the claimed privileges have been waived due to others not in the privilege chain having been included on the email. Further, the mere labeling of an e-mail as ‘attorney client privlaged’ [sic] [see, e.g., items 7 and 8 on the privilege log] does not in itself make such a privileged communication. Finally, it is not clear from the face of the privilege log that the senders or recipients are lawyers acting in such capacity on behalf of the Town. 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 (2017); see also Hanover Ins. Co. v. Rapa & 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).

Angie Sprang SPR25/1176 Page 4 May 9, 2025 Based on the Town’s February 3rd response, I find that the Town has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Town must clarify 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, that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Although the Town provided the date, names of the individuals, the author and recipients, the grounds on which the attorney-client privilege are being claimed, and the subject of the communications, the substance of the communications remains unclear. As such, the Town must provide the substance of the communications for the 137 emails withheld under the attorney-client privilege. Open Meeting Law The Town’s February 3rd response raises issues potentially related to the Open Meeting Law (OML). See G. L. c. 30A, § 21(a)(1). Given that the 19 emails withheld under executive session is based on the Open Meeting Law, and an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. Consequently, I encourage the parties to contact the AGO for a determination concerning the Open Meeting Law issues. Therefore, I will now consider this part of the appeal closed. Conclusion Accordingly, the Town is ordered to provide Mr. Goldsmith with a response to the request related to the 137 emails withheld under attorney-client privilege, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Frederick Goldsmith