Rob Fasulo v. Wilmington, Town of - Town Clerk (SPR 20253151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 12, 2025 SPR25/3151 Elizabeth Lawrenson Town Clerk Town of Wilmington 121 Glen Road, Room 12 Wilmington, MA 01887 Dear Ms. Lawrenson: I have received the petition of Rob Fasulo appealing the response of the Town of Wilmington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2025, Mr. Fasulo sought the following: Referencing a statement from the town manager made during the September 22, 2025 select board meeting he stated that he had a discussion with town counsel that using funds from the construction of the town hall school administration contingency is within the scope of the vote of the town meeting. I would like a copy of this decision as filed by counsel with the clerks office. The Town responded on October 20, 2025, denying the request and claiming that the responsive record is exempt from disclosure pursuant to the attorney-client privilege. Unsatisfied with the Town’s response, Mr. Fasulo petitioned this office and this appeal, SPR25/3151, was opened as a result. While this appeal was pending, the Town provided a supplemental response in an email to Mr. Fasulo and this office on October 31, 2025. 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). 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

Elizabeth Lawrenson SPR25/3151 Page 2 November 12, 2025 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. Att’y 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. The Town’s October 20th and October 31st Responses In its October 20, 2025 response, the Town stated, “[t]he document you are requesting . . . falls under attorney-client privilege. We consider this request closed.” In its October 31, 2025 supplemental response, a representative of the Town further advised the following: I am writing to you in response to this [appeal]. Our Town Council advised us that the mere restatement of a conclusion of Town Counsel would not serve to waive the attorney-client privilege. Further, the privilege is held by the Select Board and so could not be waived by the Town Manager. . . . An opinion provided by Town Counsel may be deemed confidential and privileged communication subject to withholding unless otherwise disclosed in full, which did not occur in this instance. Current Appeal In his October 28, 2025 appeal, Mr. Fasulo states that his request concerns, “a decision that is legally to be filed per our town charter by Town Counsel” and notes that the decision “was spoke about by our town manager at the September 22 2025 BOS meeting.” He further contends, “this document should be open to public inspection” where “it was spoken about in an open session of the BOS” and is “the sole reason the BOS was able to take a vote on the matter[.]” 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

Elizabeth Lawrenson SPR25/3151 Page 3 November 12, 2025 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). Based on the Town’s response, I find the Town has not established the existence of an attorney-client relationship under these circumstances. The Town has not demonstrated that the withheld 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, that the communications were made in confidence, and that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Further, the Town has not provided a detailed description of the record in compliance with G. L. c. 66, § 10A(a). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Fasulo with a response to his 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. Fasulo 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: Rob Fasulo