Paula Fay v. Middleborough, Town of - Office of the Town Clerk (SPR 20253409)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2025 SPR25/3409 Pamela Menconi Town Clerk Town of Middleborough Town Hall Annex 20 Centre Street, 1st Floor Middleborough, MA 02346 Dear Ms. Menconi: I have received the petition of Paula Fay appealing the response of the Town of Middleborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2025, Ms. Fay requested the following: [1] Please provide the Briefing Document for the September 8, 2025, Board of Library Trustees Meeting. [2] Please provide copies of all versions of the attached document (KP response to Friends.DOCX). For each version, provide all associated emails including a list of people with whom the document was shared. [3] Please provide copies of all versions of the attached document (KP-#995390- v1 - MDBR_(pdf)BOLTS_response_to_Attorney_letter). For each version, provide all associated emails including a list of all people with whom the document was shared. The Town assigned reference number 25-421 to this request, and responded on October 12, 2025, with a letter dated September 30, 2025. Unsatisfied with the Town’s response, Ms. Fay petitioned this office, and this appeal, SPR25/3409, 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 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

Pamela Menconi SPR25/3409 Page 2 December 3, 2025 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 her appeal petition, Ms. Fay argues, among other things, the following: The Friends of the Middleborough Public Library, Inc., feel that there is a significant issue with how public records are handled and ask that the entire process be reviewed. This review should not only address the role of [a named individual] and his ability to hold the position of Record Access Officer for the Town of Middleborough when he is not an employee of the Town but should include a full review of the Public Record process for the Board of Library Trustees as the Friends have not been able to determine if there is one in place. The Town’s October 12th Response In its October 12, 2025 response, the Town provided a letter dated September 30, 2025, and provided numerous responsive records, described below: [T]he Town has diligently undertaken review of the requested items and responsive, non-privileged records are enclosed herewith, including briefing reports responsive to Part One; draft of letter referenced in Part Two, and letter referenced in Part Three with the accompanying cover e-mail and e-mail from the Library Director dated September 12, 2025. In its September 30th letter, the Town indicates that it intends to withhold three responsive emails pursuant to the attorney-client privilege. 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)

Pamela Menconi SPR25/3409 Page 3 December 3, 2025 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 not inspect the record but 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 September 30th letter, the Town provides a privilege log, listing the three emails, including their dates, subjects, senders, and recipients. The Town also provides the following explanation: The Town is withholding three e-mails, listed below, related to Part Two of your request pursuant to attorney client privilege. Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); Kay v. Town of Concord, 105 Mass. 366 (2025). The withheld e-mails were between Town Counsel and the Town Manager, Chair of the Select Board, Library Director and Chairman of the Library Board of Trustees in Town Counsel’s capacity as the Town’s attorney; the communications were made in confidence for the purpose of seeking and providing legal advice; and the Town has not waived the privilege. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007). As the disclosure of any further information concerning those e-mails will jeopardize the ability of the Town to obtain legal advice, nothing more will be provided. See, Kay v. Town of Concord, 105 Mass. 366 (2025). In this case, where the Town has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the Town has met its burden to withhold the three records listed in its privilege log pursuant to the attorney-client privilege. Records in Existence The Town is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public

Pamela Menconi SPR25/3409 Page 4 December 3, 2025 employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In her appeal petition, Ms. Fay argues the following: In Public Record Request 25-421, [Ms. Fay] requested a list of all people who had been provided with a copy of the August 26th correspondence. To date, that request has not been fulfilled. . . . On September 15, 2025, the Friends of the Middleborough Public Library Inc contacted the Town Manager because neither the nonprofit nor its attorney had yet to receive a copy of the letter that the Trustees voted to send at their September 8, 2025, meeting. At approximately 1 p.m., K.P. Law forwarded a letter. . . This letter did not match the letter that was included in the September 8th Briefing Document; had been distributed via the entertainment news site hosted by a current Select Board member; and was being referenced by various Town officials including the Town Manager during a phone conversation where the Chair of Select Board was present. Based on the Town’s response, and the information provided in Ms. Fay’s appeal petition, it is unclear whether the Town possesses additional records responsive to Ms. Fay’s request. If the Town does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Town is ordered to provide Ms. Fay with a response to the 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. Fay may further appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Pamela Menconi SPR25/3409 Page 5 December 3, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Paula Fay