Eden Chorm v. Wellfleet, Town of - Town Clerk (SPR 20252889)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 8, 2025 SPR25/2889 Jennifer M. Congel Town Clerk Town of Wellfleet 300 Main Street Wellfleet, MA 02667 Dear Ms. Congel: I have received the petition of Eden Chorm appealing the response of the Town of Wellfleet (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2025, Ms. Chorm requested, “[e]mail exchanges between Town Planner [an identified individual], Human Resources Director and Town Administrator from 08/15/2025 through 08/19/2025.” The Town responded on September 9, 2025. Unsatisfied with the Town’s response, Ms. Chorm petitioned this office and this appeal, SPR25/2889, 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. 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. 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

Jennifer M. Congel SPR25/2889 Page 2 October 8, 2025 The Town’s September 9th Response In its September 9, 2025 response, the Town provided responsive records, but cited Exemption (f) of the Public Records Law and the attorney-client privilege to withhold two responsive emails. Current Appeal In her appeal petition, Ms. Chorm stated that she wished to appeal “the denial of responsive emails purportedly exempted due to an ongoing review by the Town Administrator and under attorney-client privilege.” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62.

Jennifer M. Congel SPR25/2889 Page 3 October 8, 2025 Under Exemption (f), the Town stated, “[p]lease note that there is an email that is dated August 15th from [an identified individual] to [an identified individual] with [an identified individual] cc’d. It will be exempted from this response by statute, under exemption (f).” Based on the Town’s response, it is unclear how the email may be withheld in its entirety under Exemption (f). The Town did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). It is also unclear how the record contains confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein, 378 Mass. 281, 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify these matters. 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 grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, the Town provided a privilege log and stated, “[t]here is also one email that will be exempted under Attorney client privilege.” Although the Town provided a detailed description of the record withheld pursuant to the attorney-client privilege as required under G. L. c. 66, § 10A(a), the Town has not established that the withheld communication was between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such. The Town must also provide further information regarding whether the communication was made in confidence and demonstrate that the privilege has not been waived. The Town must clarify these matters.

Jennifer M. Congel SPR25/2889 Page 4 October 8, 2025 Conclusion Accordingly, the Town is ordered to provide Ms. Chorm with a response to her 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. Ms. Chorm 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: Eden Chorm