Kevin Mullen v. Fairhaven, Town of (SPR 20251453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2025 SPR25/1453 Elisabeth E. Horan Town Clerk Records Access Officer Town of Fairhaven 40 Center Street Fairhaven, MA 02719 Dear Ms. Horan: I have received the petition of Kevin Mullen appealing the response of the Town of Fairhaven Conservation Commission (Town/Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 26, 2025, Mr. Mullen submitted the following request: On September 5th, 2023, September 25, 2023 and November 6, 2023, the Fairhaven Conservation Commission by majority vote entered into executive session to deliberate with [a specified] matter. I am seeking copies of: 1. The minutes from each executive session; 2. The notes used in the preparation of the minutes for each executive session, if any; 3. A list of all documents and other exhibits used at each executive session, if any; 4. A record of any votes taken during each executive session; 5. Any photographs, recordings or maps used by the body during their deliberations, if any; 6. The list of members present or absent during each executive session; 7. A summary of discussions at each executive session, if any. The Town provided responses on March 15, March 19, and April 17, 2025. Unsatisfied with the Town’s responses, Mr. Mullen petitioned this office and this appeal, SPR25/1453, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response on May 23, 2025. 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

Elisabeth E. Horan SPR25/1453 Page 2 June 5, 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. Current Appeal In his appeal petition, Mr. Mullen argues the following: On March 15, 2025, I received the response to my records request from the Town Clerk. . . . The RAO provided two sets of executive session minutes, one dated September 5, 2023 and one dated November 6, 2023. Also provided in a follow up email were documents the Commission used during the executive session meetings. Absent from the response were the requested executive session minutes requested dated September 25, 2025. The response failed to assert any claim of attorney client privilege with regard to the minutes being withheld. Subsequent to the opening of this appeal, in multiple emails to this office, Mr. Mullen reiterates his objections to the Town’s responses. In an email to this office and the Town on May 26, 2025, Mr. Mullen clarifies that “it is not [his] intention to belabor this issue any further than necessary, all [he is] seeking are the unredacted minutes in question.” The Town’s Responses In its March 15, 2025 response, the Town provides numerous responsive records. In its March 19, 2025 and April 17, 2025 responses, the Town states that “Executive Session minutes for September 25, 2023 have not been approved.” In its May 23, 2025 response, the Town states that it is withholding the responsive minutes pursuant to the attorney-client privilege.

Elisabeth E. Horan SPR25/1453 Page 3 June 5, 2025 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 not inspect the record but 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 23rd response, the Town explains the following: [The Town] provided a timely response to Mr. Mullen’s public records request by providing the requested documents within 10 business days, with the exception of the minutes of the September 25, 2023 Conservation Commission executive session. [The Town] advised Mr. Mullen within that same time period that the September 25, 2023 minutes had not been approved. . . . The minutes of the September 25, 2023 meeting remain subject to the attorney- client privilege and therefore continue to be withheld. The Conservation Commission met on May 19, 2025 to review these minutes and voted to continue to maintain the confidentiality of these minutes. The purpose of the September 25, 2023 executive session was for counsel to meet with the Commission and provide legal advice relating to the property located at 344 and 346 New Boston Road, Fairhaven, MA and litigation related thereto. Town Counsel was present during that executive session and provided legal advice to the Commission, which is reflected in the minutes. The attorney-client privilege has not been waived as to these minutes. . . . [W]hile the specific Superior Court litigation (BRCV2373CV00201I) that was the subject of that executive session has been dismissed, the Commission’s enforcement action relating to this property remains ongoing. . . . In this case, the Town’s responses did not contain the specificity required in a denial of access to public records. In its response, the Town has provided only some of the information required under G. L. c. 66, § 10A(a), including the date, the substance of the records, and the

Elisabeth E. Horan SPR25/1453 Page 4 June 5, 2025 grounds upon which the attorney-client privilege is being claimed. The Town has also explained that the communications were received during the course of the client’s search for legal advice, that the communications were made in confidence, and that the privilege has not been waved. However, the Town’s response did not include the names of the authors and recipients of the communications. Consequently, the Town must provide the names of the author and recipients of the records being withheld under the attorney-client privilege. See G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Mr. Mullen 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. Mullen may further appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Mullen