Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20252601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2025 SPR25/2601 Michael P. Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2025, Mr. Kelleher requested “a copy of the emails that the board of health sent to [the Town Administrator] with regards to the last two open meeting law complaints responses they had [the Town Administrator] forwarded to [Mr. Kelleher.]” The Town responded on August 12, August 14, August 19 and September 2, 2025. Unsatisfied with the Town’s responses, Mr. Kelleher petitioned this office, and this appeal, SPR25/2601, 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. 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. 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

Michael P. Seery SPR25/2601 Page 2 September 15, 2025 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 Responses In its August 14, 2025 and August 19, 2025 responses, the Town provided responsive emails in redacted form. In its August 12 and September 2, 2025 responses, the Town cites the attorney-client privilege for redacting the emails. 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 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). In its August 12th response, the Town states that “the email that the Board of Health sent to [the Town Administrator] containing their official OML Complaint response also included questions for Town Counsel. As such, [the Town] cannot forward the email to [Mr. Kelleher] as it is confidential.” In its August 14th response, the Town then provided the responsive email in redacted form, and in its August 19th response, provided a second responsive email, also in redacted form. In its September 2, 2025 response, the Town states that “that which was redacted on the documents that you received is Attorney Client privilege.” In this case, although portions of the emails were redacted, the Town has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the authors and recipients, and detailed information regarding the subject of each email communication. Additionally, based on the information included in the emails, and the explanations provided in the Town’s August 12th and September 2nd responses, I find that the Town has met its burden to redact these emails pursuant to the attorney-client privilege.

Michael P. Seery SPR25/2601 Page 3 September 15, 2025 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Kelleher 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). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Kelleher