Peter J. Most v. Great Barrington, Town of - Office of the Town Clerk (SPR 20252994)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 28, 2025 SPR25/2994 Joshua Risen Town Clerk Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Mr. Risen: I have received the petition of Peter J. Most, Esq. appealing the response of the Town of Great Barrington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2025, Attorney Most requested the following records: [1] The executed Settlement Agreement in the matter Theory Wellness et al. v. The Town of Great Barrington, Middlesex County Civil Action No. 2481CV00693 (the “Matter”). [2] Correspondence (e.g., emails/letters) between [an identified individual], counsel to Plaintiffs, and [an identified individual], counsel to Defendant, concerning or related to settlement of the Matter. The Town responded on October 1, 2025 and October 8, 2025. Unsatisfied with the responses, Attorney Most petitioned this office and this appeal, SPR25/2994, 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. 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

Joshua Risen SPR25/2994 Page 2 October 28, 2025 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. Current Appeal In his appeal, Attorney Most asserts, “[b]ecause the Town’s Counsel correspondence constitutes records made or received on behalf of the Town and no valid exemption applies, I respectfully request that you direct the Town of Great Barrington to produce the responsive documents described in Item 2.” The Town’s October 1st and October 8th Responses In its October 1, 2025 response, the Town provided a copy of the Settlement Agreement as responsive to Item 1. The Town cited Exemption (d) of the Public Records Law and specifically work product as well as attorney-client privilege to withhold the records responsive to Item 2. In its response, the Town identified seven correspondences it was withholding. In its October 8, 2025 response, the Town denied Attorney Most’s request for reconsideration and stated, “...the Town has not changed its position regarding non-exempt documents responsive to your Public Records Request.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, §

Joshua Risen SPR25/2994 Page 3 October 28, 2025 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the Town states the following: ... the Town believes that even if the correspondence between [identified] Attorneys were considered to be a public record it would be subject to another exemption as so-called work product material of Town Counsel, in that it contains or reflects mental impressions of Town Counsel regarding issues bearing on the settlement. Therefore, the Town will treat that correspondence as also exempt from disclosure under the public records law as attorney work product, based on Massachusetts case law. (Da Rosa v. City of New Bedford, 471 Mass. 446 (2015); Kay v. Town of Concord, 105 Mass. App. Ct. 366 (2025)). In addition, as you may know, there is still other pending litigation against the Town concerning the same issues raised in the Theory Wellness case and a claim for refund of community impact fees paid to the Town under a marijuana establishment host community agreement: D2N2, LLC d/b/a Calyx v. Great Barrington, et al., Berkshire Superior Court Civil Action No. 2476CV000041. A disclosure of Town Counsel work product related to the Theory Wellness case could have a negative impact on the Town’s position in the Calyx litigation. For that additional reason, the Town will treat the settlement correspondence between [identified] Attorneys as exempt from disclosure. Work Product Doctrine The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Although the Town states that the correspondence reflects the “reflects mental impressions of Town Counsel regarding issues bearing on the settlement,” the Town has not established how the withheld documents, in their entirety, constitute work product that may be withheld as contemplated in DaRosa. Further, the Town has not explained how the records constitute opinion work product prepared in anticipation of litigation. As a result, I find that the Town has not met its burden to withhold the requested records under Exemption (d). The Town must clarify.

Joshua Risen SPR25/2994 Page 4 October 28, 2025 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 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). In its response, the Town stated, “[a]s communications from Town Counsel to the Town, and regarding litigation involving the Town, those emails are subject to the attorney-client privilege and therefore exempt from disclosure under the public records law. (Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007)).” Based on the Town’s response, I find the Town has not established the existence of an attorney-client relationship in compliance with Suffolk. Particularly, although the Town states that the records constitute “... communications from Town Counsel to the Town, and regarding litigation involving the Town[,]” the Town has not demonstrated that the communications were made in confidence, and that the privilege as to the communications has not been waived. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Attorney Most with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Attorney Most may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Joshua Risen SPR25/2994 Page 5 October 28, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Peter J. Most, Esq.