Ron Cecchini v. Milton, Town of - Town Clerk (SPR 20252587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2025 SPR25/2587 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Ron Cecchini appealing the response of the Town of Milton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2025, Mr. Cecchini requested, “…all emails between [an identified individual] and Select Board chair for the time period of May 1, 2025 through July 6, 2025. These are all emails from [an identified individual] to [an identified individual] (or a group that includes [an identified individual]) and all emails from [an identified individual] to [an identified individual] (or a group that includes [an identified individual]).” On July 27, 2025, Mr. Cecchini modified his request, seeking the following: [1] A Vaughn Index of all emails withheld under the claimed attorney-client privilege exemption[;] [2] Production of all responsive records with redactions as appropriate, rather than wholesale withholding[;] [3] Clarification of the specific statutory basis under M.G.L. c. 4, § 7 you are relying upon to assert attorney-client privilege[;] [4] Records establishing when and how [an identified individual] was retained as Special Counsel, including: [a] Letters of engagement or contracts[;] [b] Scope of engagement[;] [c] Any compensation (planned or paid)[;] 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

Susan M. Galvin SPR25/2587 Page 2 September 12, 2025 [d] Who approved or signed the engagement (Chair or full Select Board)[;] [5] Clarification on the Town’s policy and legal basis for asserting attorney-client privilege…[;] [6]…all emails or written communications between [an identified individual] to any member of the Select Board, and from any member of the Select Board to [an identified individual], for the time frame April 1, 2025 to July 6, 2025. Previous Appeal This request was the subject of a previous appeal. See SPR25/2270 Determination of the Supervisor of Records (August 11, 2025). In my August 11th determination, it was my understanding that the Town provided further responses to Mr. Cecchini. The Town responded on August 4, 2025 and August 11, 2025. Unsatisfied with the Town’s responses, Mr. Cecchini petitioned this office and this appeal, SPR25/2587, 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. See 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. See 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 August 4th and August 11th Responses In its August 4, 2025 response, the Town stated, “[t]he Town can confirm it is in receipt of the revised records request on Sunday July 27. The Town has begun compiling records to review for responsiveness and any potential exemptions for withholding of records, particularly related to the attorney-client privilege. Once our initial review of records is complete, the Town will respond within 10 business days of July 27 with responsive records, identify any exemptions, and/or request additional time to complete.”

Susan M. Galvin SPR25/2587 Page 3 September 12, 2025 In its August 11, 2025 response, the Town stated that it possessed no records responsive to Items 1, 4, and 5. The Town further stated the following relative to Item 6 of the request: The Town has provided responsive records of emails between [an identified individual] and Select Board members between the dates of April 1, 2025 and June 18, 2025. The Town is withholding emails sent by [an identified individual] and members of the Select Board between June 19, 2025 and June 25, 2025. On June 20, 2025, the Milton Select Board appointed [an identified individual] as special counsel in relation to potential litigation against the Commonwealth of Massachusetts regarding the MBTA Communities Act. Emails sent and received during this time period and materials he prepared for the Select Board’s consideration are subject to the attorney-client privilege. Current Appeal In his August 30, 2025 appeal to this office, Mr. Cecchini objected to the Town’s withholding of records responsive to Item 6 under 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) 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 date, the substance of such record, and the ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Based upon the Town’s responses, I find 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 course of the Town’s search for

Susan M. Galvin SPR25/2587 Page 4 September 12, 2025 legal advice, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. The Town must also provide a detailed description of the records which includes the names of the author and recipients, the date, the substance of such records, and the grounds upon which the attorney-client privilege is being claimed, as required by G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Mr. Cecchini 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. Cecchini may 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: Ron Cecchini