Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20251450)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 29, 2025 SPR25/1450 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. Prior Appeal This request was the subject of a prior appeal. See SPR25/1211 Determination of the Supervisor of Records (May 6, 2025). In my May 6th determination, I found that the Town had not met its burden to redact responsive records under the attorney-client privilege. The Town responded on May 16, 2025. Unsatisfied with the response, Mr. McPhee petitioned this office and this appeal, SPR25/1450, 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 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 SPR25/1450 Page 2 May 29, 2025 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 16th Response In its May 16, 2025 response, the Town provided additional detail in support of its claim that the redacted information was exempt from disclosure pursuant to the attorney-client privilege. Current Appeal In his May 21, 2025 petition to this office, Mr. McPhee contended that the Town’s explanation did not justify the redaction of responsive records. 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). In its May 16th response, the Town stated: [T]he document you requested contains the minutes of an executive session that summarize a verbal exchange between an attorney and their client on a highly sensitive personnel issue in which the client sought the attorney’s advice. The

Angela Jack SPR25/1450 Page 3 May 29, 2025 redacted information reflects the specific issue about which the Select Board requested legal advice, in addition to the legal advice provided to the Board by the attorney. The communication was made in confidence during a lawful executive session pursuant to the Massachusetts Open Meeting Law, General Laws c. 30A, §21. The attorney-client privilege as to these communications has not been waived. [An identified individual] authored the February 1, 2024 executive session minutes. The un-redacted February 1, 2024 minutes have been received only by the Town’s Labor Counsel and members of the Select Board. Based on the Town’s response, I find that it has met its burden to redact the requested record pursuant to the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. McPhee is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Patrick D. McPhee Sharon P. Siegel, Esq.