Steven J. Good v. Marshfield, Town of - Town Administrator (SPR 20251489)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2025 SPR25/1489 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Steven J. Good appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2024, Mr. Good requested: [A]ny and all information regarding [a specified address], Marshfield, MA across all town boards and commissions, including all town employees and contractors. Specifically, we request any emails, photographs, internal and external communications, plans, charts, maps, town data associated with the parcel, meeting notes and minutes and any site visit dates and information regarding the purpose of the visit. We request this information between 01/01/2022, approximately 5 months before the property was publicly listed for sale, through the date that the information is returned to the requester. Previous Appeals This request was the subject of previous appeals. See SPR24/1333 Determination of the Supervisor of Records (May 15, 2024) and SPR24/1613 Determination of the Supervisor of Records (June 12, 2024). In my June 12th determination, I ordered the Town to provide an index comprised of a detailed description of each record being withheld pursuant to the attorney-client privilege. The Town provided a further response on April 18, 2025. Unsatisfied with the Town’s response, Mr. Good petitioned this office and this appeal, SPR25/1489, 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 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

Michael A. Maresco SPR25/1489 Page 2 June 9, 2025 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 April 18th Response In its April 18, 2025 response, the Town provided a privilege log for 12 items withheld under attorney-client privilege. In its privilege log, the Town also explains that one item “was erroneously withheld. [The] Email constitutes legal opinion of Town Counsel and not an attorney-client privileged communication. [The] Email will be disclosed.” 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 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). Under the attorney-client privilege, the Town states, “[c]ontained within this log is a description of the redacted email communications, who they were between, the date sent, the

Michael A. Maresco SPR25/1489 Page 3 June 9, 2025 subject of the communication, the exemption and the basis explaining that these communications were for legal advice made in confidence and that the privilege was not waived….” Based on its April 18th response, I find the Town has met its burden to withhold the records listed in its privilege log pursuant to the attorney-client privilege. Specifically, the Town provided an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Town stated that the communications were made during the client’s search for legal advice from an attorney in his or her capacity as such, that the communications were made in confidence, and that the privilege as to the communications has been waived. Records in Existence; Possession, Custody, or Control In his appeal petition, Mr. Good states: I’m following up on this email that I received from Town Counsel’s Office containing the privilege log. This log details 12 items where privilege was not waived. There are still other items that have not been provided where the town failed to meet its burden of specificity in claiming attorney-client privilege. Additionally, the town has still not provided the appropriately redacted items. This incomplete response mirrors the original request for public records where the town identified a specific number of documents that they needed to turn over, which they used to ‘request’ an extension to their deadline to respond. The town stated that they were in possession of 481 documents but never turned over all of their documents. Now, your office ordered the town to specifically address 25 items. 25 items have not been addressed. Please note that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone conversation with this office on June 5, 2025, the Town confirmed that it does not possess additional records responsive to the request. Specifically, the Town explained that the original 25 Items mentioned in the Town’s previous response included duplicates of several emails shared among Town officials. After careful review, the Town found that only 12 Items were created that are protected by attorney-client privilege.

Michael A. Maresco SPR25/1489 Page 4 June 9, 2025 Where the Town has confirmed that it does not possess additional responsive records, and the Town has no duty to create records, I find that the Town has met its burden in responding to this request under the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Good 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, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Steven J. Good