James Foster v. Millville, Town of, Office of the Town Clerk (SPR 20252061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2025 SPR25/2061 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[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/1623 Determination of the Supervisor of Records (June 20, 2025). In my June 20th determination, I ordered the Town to clarify whether it possessed any records responsive to Item 1 of the request and provide a detailed description of the record(s) withheld under Item 2 of the request. 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 SPR25/2061 Page 2 July 30, 2025 The Town responded on July 7, 2025. Unsatisfied with the Town’s response, Mr. Foster petitioned this office and this appeal, SPR25/2061, 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. 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 July 7th Response In its July 7, 2025 response, the Town cited the Open Meeting Law as it operates through Exemption (a) of the Public Records Law to withhold records responsive to Item 1. The Town provided two email communications responsive to Item 2 of the request and withheld four email communications in their entirety pursuant to the attorney-client privilege. Current Appeal In his July 15, 2025 petition to this office, Mr. Foster stated: The Town continues to withhold executive session minutes and related records under the broad claim of an “ongoing personnel matter” within the Fire Department…the Town asserts that some of the withheld communications are protected by attorney-client privilege. However, this claim is undermined by the Town Administrator’s voluntary disclosure of the substance of those communications to the Fire Chief…Once such disclosure occurred, the underlying communication was no longer confidential and cannot be withheld on that basis. …

Kelly J. Cote SPR25/2061 Page 3 July 30, 2025 Under G.L. c. 30A, § 22(g)(1), the Town is obligated to release executive session minutes once the purpose of the session has been resolved… Open Meeting Law – Item 1 In its July 7th response, the Town stated: …the requested minutes were approved by the [Board of Selectmen] on June 2, 2025. Consequently, these minutes have not yet been made public as they pertain directly to the Town’s position with respect to several ongoing litigation matters and a sensitive ongoing personnel matter within the Fire Department. As such, after review, these minutes are confidential executive session materials covered by G.L. c. 30A, § 22(f), as the statute operates through Exemption (a) of the Public Records Law. The executive session purpose has not ended as the Town’s position in these matters is still ongoing… The nature of the Town’s response and Mr. Foster’s appeal raise issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address this issue in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes. Common Law Attorney-Client Privilege – Item 2 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

Kelly J. Cote SPR25/2061 Page 4 July 30, 2025 date, the substance of such record, and the ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its July 7th response, the Town states the following: The responsive records here are confidential communications regarding a potential cease and desist within the Fire Department, between the Town and Town Counsel, where Town officials sought and received confidential legal advice from Town Counsel in Town Counsel’s capacity as such, and the privilege has not been waived by any disclosure to some third party. As such, those records are being withheld pursuant to the Attorney-Client Privilege. Suffolk Const. Co., supra at 450, n.9. In light of the Supervisor’s Determination…the Town has diligently undertaken a further, individualized review of the e-mails requested. After said review, the Town has enclosed some of the responsive records as we have determined that they are not privileged under Attorney-Client Privilege. With respect to the remainder of the responsive records, the Town has provided the enclosed privilege log in compliance with the Supervisor’s instructions. Upon review, the Town has satisfied the requirements articulated in Suffolk. Further, in its July 7, 2025 response, the Town provided a privilege log which satisfies the requirements of G. L. c. 66, § 10A(a). Therefore, I find that the Town has met its burden to withhold the responsive records under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Foster 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: James Foster