Rob Fasulo v. Wilmington, Town of - Town Clerk (SPR 20253208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2025 SPR25/3208 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 30, 2025, Mr. Fasulo sought the following: On Monday night October 27th 2025 [an identified] town manager . . . referenced a legal opinion from town counsel that Article 1 of the upcoming Special Town Meeting was in their opinion non binding as such would be treated as a non binding vote. . . . I wish to receive the document as required to be filed with the clerks office per our charter. The Town responded on October 30, 2025. Unsatisfied with the Town’s response, Mr. Fasulo petitioned this office and this appeal, SPR25/3208, 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. Status of the Requestor In his appeal petition, Mr. Fasulo states that he is “one of the three petitioners of this article/Special Town Meeting[.]” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). 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 SPR25/3208 Page 2 November 13, 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). 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 30th and October 31st Responses In its October 30, 2025 response, the Town stated the following: The document(s) you request are protected by attorney/client privilege. The mere restatement of a conclusion of Town Counsel does not to waive the attorney client privilege [sic]. Further, the privilege is held by the Select Board and could not be waived by the Town Manager. Furthermore, the Inhabitant Bylaws state in Chapter 3, Section 6 that “confidential and privileged communications shall be exempt from mandatory disclosure pursuant to the applicable provisions of the Massachusetts Public Records Law.” In its October 31, 2025 supplemental response, a representative of the Town restated a portion of the Town’s previous response and further advised the following: 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.

Elizabeth Lawrenson SPR25/3208 Page 3 November 13, 2025 Current Appeal In his October 31, 2025 appeal, Mr. Fasulo contends, “[t]his document, which is legally required to be filed by town counsel is being used to strip the voters of their right to govern the assets of the town [and] as such should be a record open to public inspection[.]” Mr. Fasulo provided additional information concerning his appeal in emails to this office dated October 31, 2025 and November 6, 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 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 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. Additionally, it is unclear which specific records the Town intends to withhold. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Town withheld “document(s)” without identifying which records those are. Therefore, the Town must identify the record(s) it has in its possession that it withheld under the attorney-client privilege.

Elizabeth Lawrenson SPR25/3208 Page 4 November 13, 2025 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