Robert Belbin v. Carver, Town of - Town Administrator (SPR 20252138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2025 SPR25/2138 Michelle Sheehan Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Robert Belbin appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2025, Mr. Belbin requested the following records from January 1, 2024 to the present: [1] [A]ll emails to and from all Select Board Members and Carver Town Administrator and any other person regarding the purchase, sale lease or exchange, or value of real estate of the North Carver Water District (NWCD) or the property under the control of the NCWD; and [2] April 15, 2025 executive session minutes regarding the purchase, lease, exchange or value of real estate of the NCWD. The Town responded on July 21, 2025. Unsatisfied with the response, Mr. Belbin petitioned this office and this appeal, SPR25/2138, 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). 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

Michelle Sheehan SPR25/2138 Page 2 August 1, 2025 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 July 21st Response In its July 21, 2025 response, the Town withheld seven email communications pursuant to the attorney-client privilege. For each withheld communication, the Town provided the names of the author and recipient, the date, and the substance of the record. The Town further stated that it was withholding executive session minutes responsive to Item 2 of the request pursuant to the Open Meeting Law as it operates through Exemption (a) of the Public Records Law. Current Appeal In his July 21, 2025 petition to this office, Mr. Belbin contended that the Town had no authority to withhold responsive records. Item 1 – 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 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).

Michelle Sheehan SPR25/2138 Page 3 August 1, 2025 Based on the Town’s July 21st response, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify whether the requested communications were between the Town and its attorney in the attorney’s capacity as such, whether the communications were made in confidence, and whether the attorney-client privilege has been waived with respect to each of the communications. Item 2 – Open Meeting Law The nature of Mr. Belbin’s request and the Town’s response 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. Conclusion Accordingly, the Town is ordered to provide Mr. Belbin 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. Belbin may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Robert Belbin