Peter J. Most v. Great Barrington, Town of - Office of the Town Clerk (SPR 20253352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2025 SPR25/3352 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. Prior Appeal This request was the subject of a prior appeal. See SPR25/2994 Determination of the Supervisor of Records (October 28, 2025). In my October 28th determination, I found that the Town did not establish how the withheld documents, in their entirety, constitute work product that may be withheld as contemplated in DaRosa. I further found that the Town did not establish the existence of an attorney-client relationship in compliance with Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass, 450 n.9 (2007). The Town responded on November 12, 2025. Unsatisfied with the response, Attorney Most petitioned this office and this appeal, SPR25/3352, 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 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 SPR25/3352 Page 2 November 26, 2025 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. Current Appeal In his appeal, Attorney Most asserts, “[the Town’s] supplemental submission continues to rest on inaccurate statements of Massachusetts law and does not cure the deficiencies identified by the Supervisor. I respectfully request that the Supervisor order the Town to promptly produce the records at issue as required by the Public Records Law.” The Town’s November 12th Response In its November 12, 2025 response, the Town cited Exemption (d) of the Public Records Law, specifically work product, as well as attorney-client privilege to withhold the records responsive to Item 2. The Town previously provided the settlement agreement referenced in Item 1 of the request. Thus, only Item 2 is at issue. 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

Joshua Risen SPR25/3352 Page 3 November 26, 2025 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, § 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). 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. In its response, the Town states, “[f]or Great Barrington, KP Law is the appointed Town Counsel, not ... or any individual attorney of the firm. Attorneys are assigned to provide services as the firm determines appropriate for the particular matter in question.” The Town further stated, [t]he Correspondence Between Town Counsel and Plaintiffs’ Counsel in the Theory Wellness Litigation Qualifies for Treatment as Attorney Work Product and Withholding Under Exemption (d) of the Public Records Definition.” The Town further asserted, Documents prepared “because of’ existing or expected litigation” qualify as work product. Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 316 (2009). The documents requested, correspondence between counsel for the Town and counsel for opposing parties in litigation against the Town and relating to settlement of the litigation, were prepared only because of the existence of that litigation. As is the case here, an attorney’s communications regarding settlement of legal claims, which cover such matters as monetary amounts, timing of any payment, elements of a settlement agreement, and the like, as well as the interrelationship among those matters, will necessarily reflect the attorney’s mental impressions and thought processes. Such communications may well also reflect policy or strategy choices of the attorney and/or the client. ... Here, the correspondence in question was between opposing counsel in litigation, i.e., shared, so a question would arise regarding work product and exemption (d) treatment. First, the settlement communications between Attorney ... and plaintiffs’ counsel were, as is typically the case, confidential and for settlement purposes. They were not intended to be disclosed to anyone other than the respective attorneys’ clients, and the correspondence was predicated on that fundamental understanding. Second, for exemption (d) purposes, a public records requester should be viewed as a person standing in the shoes of a

Joshua Risen SPR25/3352 Page 4 November 26, 2025 litigant with the Town. Classifying the counsel-to-counsel correspondence as public records would result in allowing adverse parties in other litigation with the Town (such as the plaintiff in the D2N2, LLC d/b/a Calyx v. Great Barrington community impact fees litigation, Berkshire Superior Court Civil Action No. 2476CV000041) to obtain those communications and thereby acquire knowledge of the Town’s litigation strategy (whether in a particular case or in general) and the mental impressions of counsel, subjects that are plainly excluded from discovery. If such communications were available by means of a public records request, the work product protection for governmental counsel would be irreparably compromised, if not destroyed. Such a result is contrary to the letter and spirit of the applicable case law. Based on the Town’s response, I find the Town has met its burden to withhold the requested correspondence under Exemption (d) of the Public Records Law, as the correspondence reflects the “. . . mental impressions of Town Counsel regarding issues bearing on the settlement” as contemplated in DaRosa. Where the Town has met its burden to withhold the requested records under the work product doctrine, I decline to opine on the applicability of the attorney-client privilege to the requested correspondence responsive to Item 2. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Most 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: Peter J. Most, Esq.