Christine McCue Potts v. Town of Millis (SPR 20251363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 28, 2025 SPR25/1363 Karen Bouret DeMarzo Assistant Town Administrator Human Resources Manager Town of Millis 900 Main Street Millis, MA 2054 Dear Ms. Bouret DiMarzo: I have received the petition of Christine McCue Potts, of The Valley Patriot, appealing the response of the Town of Millis [Town] to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 2, 2025, Ms. McCue Potts requested the following records: [1] April 11, 2025 Millis Housing Authority board meeting agenda (if the April 11 meeting was cancelled and rescheduled, please send the cancellation notice, and new agenda for the rescheduled date, assuming it was made available by today, May 2). [2] E-mail sent to Millis “town manager” from Millis Housing Authority [identified individual] as referenced in the Millis Housing Authority March 27, 2025 board meeting minutes: “ED sent an appeal to the town manager for the consideration of [an identified individual] to remain in her seat as she is still in transition of her move and has not fully moved out of town. Town Counsel reviewing again for consideration.” (It’s not clear if the e-mail referenced was sent to Millis Town Administrator or Asst. Town Administrator/HR Manager, or someone else.) [3] E-mail from Millis Town Counsel and/or “town manager” in response to [an identified individual’s] request, as noted in #2 above. This would have been sent sometime between March 13, 2025 and May 2, 2025. The Town responded on May 14, 2025. Unsatisfied with the response, Ms. McCue Potts petitioned this office and this appeal, SPR25/1363, was opened as a result. 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

Karen Bouret DeMarzo SPR25/1363 Page 2 May 28, 2025 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 May 14th Response In its May 14, 2025 response, the Town stated, “t]he response to #1 is attached. The response to #2 is attached and below.” With regard to Item 3, the town claimed attorney- client privilege to withhold responsive records. Current appeal In her appeal, Ms. McCue Potts states, “[b]ased on a public records request of Millis Housing Authority, a March 12, 2025 response from the Millis town administrator – which included town counsel opinion – was sent to me ... There was no claim of attorney-client privilege denying that record by Millis HA RAO. In fact, it appears that the RAO waived attorney client privilege with this particular subject.” 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., Inc. v. Div. of Capital Asset Mmgt., 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

Karen Bouret DeMarzo SPR25/1363 Page 3 May 28, 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 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 its response, the Town stated, “... the Massachusetts Supreme Judicial Court (SJC) has ruled that confidential communications between 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. Therefore, those emails are not being released.” Based upon Ms. McCue Potts’ appeal claiming that the attorney-client privilege appears to have been waived by a “March 12, 2025 response from the Millis town administrator and sent to [Ms. McCue Potts,]” the Town must clarify whether the communications were made in confidence, and that the privilege as to these communications has not been waived with regard to Item 3 of the request. Additionally, per G. L. c. 66, § 10A(a), I find that the Town must provide a detailed description of the records, 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. See G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Ms. McCue Potts with a response, 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. McCue Potts may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Christine McCue Potts