Dane R. Voris v. Marshfield, Town of - (SPR 20251689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2025 SPR25/1689 Narice A. Casper, II Records Access Officer Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Narice A. Casper, II: I have received the petition of Attorney Dane Voris, of Cooley LLP, 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 3, 2025, S. Blake Davis, of Alston & Bird, requested the following: 1. All documents and other records relating to Marshfield Town’s approval to bring claims against OptumRx, Inc.; Optum, Inc.; OptumInsight, Inc.; OptumInsight Life Sciences, Inc.; OptumRx Discount Card Services, LLC; Optum Perks, LLC; OptumHealth Care Solutions, LLC; OptumHealth Holdings, LLC; Optum Health Networks, Inc.; UnitedHealth Group Incorporated; Express Scripts, Inc.; Express Scripts Administrators, LLC; Medco Health Solutions, Inc.; ESI Mail Order Processing, Inc.; ESI Mail Pharmacy Service, Inc.; Express Scripts Pharmacy, Inc.; Evernorth Health, Inc.; or Express Scripts Specialty Distribution Services, Inc. in the national opioid litigation, In re Nat’l Prescription Opiate Litig., 1:17-md-2804 (N.D. Ohio) and its member cases (the “Opioid Litigation”). 2. All documents and other records relating to Marshfield Town’s approval to file any complaint in the Opioid Litigation. 3. All documents and other records relating to Marshfield Town’s approval to amend or supplement its complaint in the Opioid Litigation. 4. All engagement agreements, engagement letters, memoranda of understanding, memoranda of agreement, letters of intent, contracts, or other agreements (including any amendments, restatements, or modifications to such 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

Narice A. Casper, II SPR25/1689 Page 2 June 30, 2025 agreements) that Marshfield Town entered into with any law firms, attorneys, or other professionals (including, but not limited to . . .) to prosecute or assist with the prosecution of the Opioid Litigation or claims against any party or entity. 5. All documents authorizing any individual to act outside of a public hearing to authorize, approve, or consent to Marshfield Town’s filing or amending any lawsuit and all documents identifying any individuals with that authority. The Town responded on March 18, 2025. Unsatisfied with the Town’s response, Attorney Voris petitioned this office, and this appeal, SPR25/1689, was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response to Attorney Voris and this office on June 20, 2025, and in a letter to this office and the Town on June 23, 2025, Attorney Voris further objected to the Town’s supplemental response. 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 March 18th and June 20th Responses In its March 18, 2025 response, the Town provides a link to a document potentially responsive to Item 5 of the request, and states that it has no other records responsive to the request. In its June 20, 2025 response, the Town provides a fee agreement responsive to Item 1 of the request, and a privilege log for withholding seven other records responsive to Items 2 through 4 of the request.

Narice A. Casper, II SPR25/1689 Page 3 June 30, 2025 Pending Litigation In its June 20th response, the Town further argues the following This request was confirmed and a letter was sent by [Town Counsel] on behalf of the Town on March 18, 2025. . . . In summary, the requests clearly implicated attorney-client privileged communications and the MA Supervisor of Public Records’s regulatory exemption pursuant to which records that involve subjects of disputes in active litigation, administrative hearings, or mediation may be properly denied by the Supervisor of Public Records. See 950 C.M.R. 32.08(2)(b); see also SPR25/0046. This exemption exists in order to prevent persons who are actively litigating matters from using public records laws to avoid discovery requirements. The Town asserts then and now that the Supervisor, in accordance with customary practice and based on the application of the attorney-client privilege and 950 C.M.R. 32.08(2)(b) should deny the appeal to the extent it seeks additional records that are privileged and the subjects of disputes in active litigation, administrative hearings or mediation. 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Based on the information provided by the Town, I find that the Town has not demonstrated that the records requested in this appeal are the subjects of a dispute in active litigation. See National Prescription Opiate Litigation (Docket No. 1:17-MD-02804). Accordingly, it is necessary to address the Town’s claims of attorney-client privilege. 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.

Narice A. Casper, II SPR25/1689 Page 4 June 30, 2025 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 June 20, 2025 response, the Town provides a privilege log, listing seven documents responsive to Items 2 through 4 of the request. For documents 1 through 6 listed in the privilege log, the Town includes the names of the authors and recipients, dates, subjects, and the grounds for claiming the privilege. The Town also explains that the communications were made in confidence and that the privilege has not been waived. Where the Town has provided a detailed description of documents 1 through 6 listed in its privilege log, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the Town has met its burden to withhold documents 1 through 6 listed in its June 20, 2025 privilege log pursuant to the attorney-client privilege. Records in Existence Please be advised 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 its June 20th privilege log, the Town states that “[the] request is unclear if requestor wants a log of all Litigation Updates.” Regarding document 7 listed in its privilege log, the Town further states the following: Marshfield Select Board meets on a periodic basis to review and approved [sic] executive session meeting minutes and these meeting minutes have not been released. Marshfield’s last meeting date to review will be provided. Also privilege nature of information not waived. In its June 20th response, the Town also states the following: [Town Counsel has] attached a privilege log of the privileged communications and executive session minutes located in response to request nos. 2 to 4. Request is vague as to whether every litigation update is asked to be identified. There are no other documents

Narice A. Casper, II SPR25/1689 Page 5 June 30, 2025 that have been located at this time; however, we are diligently continuing to try and locate earlier documents. In the appeal petition, and in a subsequent letter to this office on June 23, 2025, Attorney Voris argues the following: [I]nstead of providing a complete privilege log, the Town purports to include only communications responsive to Requests 2 and 4, inexplicably leaving out Requests 1, 3, and 5. The Town also purports to question whether it must provide “every litigation update.” To be clear, a “litigation update” must be included if it is responsive to Requests 1 through 5. Based on the Town’s March 18th and June 20th responses, and the explanation provided in Attorney Voris’s June 23rd letter, it is unclear whether the Town possesses additional records responsive to the request. If the Town does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Town is ordered to provide Attorney Voris 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. Attorney Voris 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: Dane R. Voris, Esq. Robert W. Galvin, Esq.