Robert Belbin v. Carver, Town of - Town Clerk (SPR 20252424)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2424 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. Prior Appeal This request was the subject of a prior appeal. See SPR25/2138 Determination of the Supervisor of Records (August 1, 2025). In my August 1st determination, I found that the Town had not met its burden to withhold responsive records under the attorney-client privilege. The Town responded on August 14, 2025. Unsatisfied with the response, Mr. Belbin petitioned this office and this appeal, SPR25/2424, 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 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 SPR25/2424 Page 2 August 29, 2025 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Belbin’s purpose in making the request has no bearing on the public status of any existing responsive records. The Town’s August 14th Response In its August 14, 2025 response, the Town provided support for its claim that the withheld communications were exempt from disclosure pursuant to the attorney-client privilege. Current Appeal In his August 15, 2025 petition to this office, Mr. Belbin contended that the Town’s claim under the attorney-client privilege was unreasonable. 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

Michelle Sheehan SPR25/2424 Page 3 August 29, 2025 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). In its August 15th response, the Town stated: [T]he responsive e-mails were between the Town Administrator and Town Counsel, in Town Counsel’s capacity as the Town’s attorney; the communications were made in confidence for the purpose of seeking and providing legal advice; and the Town has not waived the privilege. As the disclosure of any further information concerning those e-mails will jeopardize the ability of the Town to obtain legal advice, nothing more will be provided. See, Kay v. Town of Concord, 105 Mass. 366 (2025). The Town further referenced its prior July 21, 2025 response, in which it provided a description of the withheld records which included the names of the authors and recipients, the dates, and the substance of each communication. Based on the Town’s responses, I find that it has met its burden to withhold the requested records pursuant to the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Belbin 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: Robert Belbin Gregg J. Corbo, Esq.