Amanda Alix v. Shutesbury, Town of (SPR 20252158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2025 SPR25/2158 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road, P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 12, 2024, Ms. Alix requested: [1] Zoom recording links for the 10/22/24 6:00 p.m. Select Board meeting and the 10/24/24 7:00 p.m. Conservation Commission meeting; [2] Executive session meeting minutes from the 10/24/23 Select Board meeting concerning a complaint filed against the Town Administrator; [3] Executive Session minutes from the following Select Board meetings concerning contract negotiations with the Town Administrator: 11/8/23; 12/5/23; 3/11/24; 3/27/24; 5/8/24; 5/20/24; 6/5/24; 6/17/24; 6/25/24. [4] Executive Session minutes regarding a letter by ‘[an identified] Attorney on behalf of a Board member’ at the 12/5/23 Select Board meeting; [5] All written communications by [identified] Attorneys regarding and in response to the letter by [an identified] Attorney. Previous Appeals This request was the subject of previous appeals. See SPR25/0547 Determination of the Supervisor of Records (March 6, 2025) and SPR25/0874 Determination of the Supervisor of Records (April 9, 2025). In my April 9th determination, I found that the Town had not met its 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

Grace Bannasch SPR25/2158 Page 2 July 31, 2025 burden to withhold Item 4 under the attorney-client privilege. The Town responded on April 10, 2025. Unsatisfied with the Town’s response, Ms. Alix appealed, and this case, SPR25/2158, 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. Current Appeal In her appeal petition to this office, Ms. Alix states: It is my understanding that minutes from executive sessions should be made public once the reason for confidentiality has passed, unless specific provisions under the Public Records Law restrict their release—which I argue is not applicable in this case. The SCC Chair resigned in January 2024, which seemed to resolve the matter. Since there has been no further action on this issue, I request that these minutes be made public and provided to me…. The Town’s April 10th Response In its April 10, 2025 response, the Town states regarding Item 4 that it is withholding the December 5, 2023 executive session minutes of the Shutesbury Selectboard pursuant to the 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)

Grace Bannasch SPR25/2158 Page 3 July 31, 2025 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: The record itself consists of a page and a half of Shutesbury Selectboard Executive Session Meeting Minutes of December 5, 2023. In attendance at the Executive Session were the Town Counsel … and Special Town Counsel, … and the Town Administrator and Administrative Secretary for record keeping purposes and to provide facts regarding the allegations. The executive session was called to discuss strategy with respect to litigation because an open meeting would have a detrimental effect on the government’s litigating position. The Town of Shutesbury had received a letter in November, 2023 from [an identified attorney] representing a municipal employee who was making claims against the town and threatening litigation. Counsels’ presence was requested to review the letter and advise the Town on how to respond to the letter, what should be included in that written response to the letter and how to proceed with the matter. 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. As stated above, the executive session was specifically called so that the Select Board could solicit legal advice from counsel on how to respond to the demand letter and what process to follow concerning the complaints therein. A records custodian claiming the attorney-client privilege under the Public Record Law has the burden of not only proving the existence of an attorney-client relationship, but also (2) that the communications were made in confidence. The

Grace Bannasch SPR25/2158 Page 4 July 31, 2025 communications were made in confidence as evidenced by the Select Board calling an executive session to discuss the matter so that the discussion regarding counsels’ legal advice would be in confidence. 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 (3) that the privilege as to these communications has not been waived. There is nothing in the record that would indicate that the Select Board waived their attorney-client privilege during the executive session or after. The statute of limitations on the claim made in [an identified attorney’s] letter has not run and the town employee could still pursue a claim against the Town…. Upon review, the Town has satisfied the requirement that the record was created in the course of the client’s search for legal advice from the Town’s counsel in their capacity as such, because the Town explained that “[c]ounsels’ presence was requested to review the letter and advise the Town on how to respond to the letter, what should be included in that written response to the letter and how to proceed with the matter.” Further, the Town has satisfied the requirement that the communications were made in confidence, because the Town explained that “[t]he communications were made in confidence as evidenced by the Select Board calling an executive session…” Finally, the Town has satisfied the requirement that the privilege as to these communications has not been waived, because it stated that “[t]here is nothing in the record that would indicate that the Select Board waived their attorney-client privilege…” Also, the Town has provided a detailed description of the record, including the names of those present during the meeting, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. Therefore, I find the Town has met its burden to withhold records under the attorney- client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Alix 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).

Grace Bannasch SPR25/2158 Page 5 July 31, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix