Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20251211)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2025 SPR25/1211 Angela Jack Town Clerk Town of Ashby 895 Main Street Ashby, MA 01431 Dear Ms. Jack: I have received the petition of Patrick D. McPhee appealing the response of the Town of Ashby (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 23, 2025, Mr. McPhee requested the executive session minutes for a February 1, 2024 meeting of the Town Select Board. The Town responded on April 29, 2025. Unsatisfied with the response, Mr. McPhee petitioned this office and this appeal, SPR25/1211, 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

Angela Jack SPR25/1211 Page 2 May 6, 2025 The Town’s April 29th Response In its April 29, 2025 response, the Town provided Mr. McPhee with a redacted copy of the responsive record. The Town stated, “[t]he redaction is based on the attorney-client privilege. Pursuant to Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007), the minutes will not be released in unredacted form.” Current Appeal In his April 29, 2025 petition to this office, Mr. McPhee contended that the attorney- client privilege did not justify the redaction of the responsive record. 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 29th response, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify how the redacted information constitutes a communication between the Town and its attorney in the attorney’s capacity as such. The Town must also clarify whether any such communication was made in confidence, and whether the attorney-client privilege has been waived. Conclusion Accordingly, the Town is ordered to provide Mr. McPhee 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. Mr.

Angela Jack SPR25/1211 Page 3 May 6, 2025 McPhee 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: Patrick D. McPhee