James Foster v. Millville, Town of, Office of the Town Clerk (SPR 20251623)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 20, 2025 SPR25/1623 Kelly J. Cote Town Clerk Town of Millville 290 Main Street Millville, MA 01529 Dear Ms. Cote: I have received the petition of James Foster appealing the response of the Town of Millville (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 16, 2025, Mr. Foster requested the following: [1] [T]he executive session minutes from the following Board of Selectmen meetings be reviewed, redacted as necessary, and made available for public inspection: April 22, 2025 [and] May 5, 2025[;] [2] [A]ny and all written records, correspondence, or internal communications created, received, or maintained by the Town Administrator, Town Counsel, or members of the Board of Selectmen related to a proposed or authorized cease and desist communication directed toward me, whether or not such a communication was ever finalized, and including if such a communication was ever considered, discussed, or drafted. This includes: emails[,] draft letters or memos[,] notes, directives or meeting materials[,] [and] any legal or internal correspondence[.] The Town provided a response on June 9, 2025. Unsatisfied with the response, Mr. Foster petitioned this office and this appeal, SPR25/1623, 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

Kelly J. Cote SPR25/1623 Page 2 June 20, 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. Att’y 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 June 9th Response In its June 9, 2025 response, the Town cited attorney-client privilege and stated: [1] In response to your request #1 – There are no minutes available for this on- going matter[;] [2] In response to your request #2 – The matters requested are subject to Attorney Client Privilege[.] Current Appeal In his June 9, 2025 petition to this office, Mr. Foster stated: [1] Executive Session Minutes[:] The Town’s statement that “there are no minutes available” due to an ongoing matter is both legally insufficient and factually inaccurate…[T]he Town has failed to comply with M.G.L. c. 30A, § 22(f)… [2] Cease and Desist Communications[:] The Town’s blanket claim that all responsive records are “subject to attorney-client privilege” is an inaccurate and procedurally deficient response…[T]he existence of at least one cease and desist communication is a matter of record. The Town Administrator informed the Fire Chief that he had the letter “in hand and ready to deliver.” That acknowledgement confirms the physical existence of the document and the Town’s intent to use it… Based on Mr. Foster’s petition and the Town’s response, it is unclear whether the Town possesses records responsive to Item 1 of the request. The duty to comply with requests for

Kelly J. Cote SPR25/1623 Page 3 June 20, 2025 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See C.M.R. 32.04(5). Consequently, the Town must clarify whether any responsive records exist. 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, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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 ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Based upon the Town’s response, I find that the Town has not established the existence of an attorney-client relationship in compliance with Suffolk. Further, per G. L. c. 66, § 10A(a), the Town must provide a detailed description of the record(s) withheld under Item 2, including the names of the author and recipients, the date, the substance of such record, and the ground upon which the attorney-client privilege is being claimed. In addition, the Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Town must identify the record(s) it has in its possession that the Town withheld under the attorney-client privilege.

Kelly J. Cote SPR25/1623 Page 4 June 20, 2025 Conclusion Accordingly, the Town is ordered to provide Mr. Foster 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. Foster may 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: James Foster