Paul Macone v. Concord, Town of (SPR 20253597)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2025 SPR25/3597 Nathanial Smith Records Access Officer Town of Concord 22 Monument Square Concord, MA 01742 Dear Mr. Smith: I have received the petition of Paul Macone appealing the response of the Town of Concord (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2025, Mr. Macone requested the following: Any written correspondence/documents from the Town of Concord to, or received by the Town of Concord’s Insurance Co. (commonly referred to as MIIA) in any form, including emails or documents received or sent by the Town of Concord, including emails and attachments that were sent to [identified email addresses] since November 01, 2025 to date. Effectively, any written communication including emails and attachments between the Town of Concord and MIIA for the date range given above. The Town responded on December 4, 2025 and December 5, 2025, and assigned reference number PRR2025-1094 to the request. Unsatisfied with the Town’s responses, Mr. Macone petitioned this office, and this appeal, SPR25/3597, 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). 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

Nathanial Smith SPR25/3597 Page 2 December 17, 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. 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, Mr. Macone states, “[t]he Town subsequently produced a simple log identifying three emails and withheld each in full. I am appealing only the withholding of these three emails. The Town asserted a blanket privilege claim, which is not permitted. … Insurance communications are not categorically privileged. … The Town relied on ‘privilege’ but did not identify any supporting exemption. … Full withholding violates the duty to provide segregable portions. … The Town did not provide a legally sufficient privilege log.” The Town’s Responses In its December 4, 2025 response, the Town cites Exemptions (a) and (c) of the Public Records Law and the attorney-client privilege to redact and withhold information. G. L. c. 4, § 7(26)(a), (c). 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 (2017); 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

Nathanial Smith SPR25/3597 Page 3 December 17, 2025 date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). On December 4th, asserting the attorney-client privilege, the Town stated, “13 records are being withheld in their entirety in accordance with Exemption A (Attorney-Client Privilege). A log of the withheld records can be reviewed here….” In an additional email on December 4th, the Town provided a privilege log. On December 5th, the Town provided the three redacted emails which are the subject of Mr. Macone’s appeal, and stated, “[t]hose three emails and any attachments are included below with the privileged information redacted.” On December 6, 2025, subsequent to the opening of this appeal, the Town provided the following explanation: Below is an additional description of the attorney-client privilege asserted here to the extent we can provide it without waiving the privilege. All three communications were part of the same email chain regarding the … Elm St. site in Concord. As you saw in the non-redacted portions of the emails, the chain began with [an identified individual’s] email to the Town’s insurance broker regarding [an identified individual’s] purported concerns with that site and a licensee’s presence and actions on that site. The Town, in response to that unauthorized outreach to the Town’s broker on the Town’s behalf, responded to the broker, copying Town Counsel, to alert the broker of the underlying factual and legal issues involving the issues at the site. These issues include the potential violations of the licensee’s terms of access to the site. Those communications were shared with the Town’s insurer in order for the Town to assess the availability of insurance coverage applicable to issues at this stage as part of its potential legal claims against the licensee, hence [Town Counsel] being involved in these communications. The insurer’s involvement did not waive the privilege as they were being brought into the matter as a necessary entity to help assess the Town’s legal options. That is the basis for the attorney client privilege claimed on the first of the three emails under Exemption (a) and Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). The broker’s response and inclusion of the Town’s insurance (and counsel) to begin the process of assisting in addressing those legal issues are the second and third responses. In this case, the Town has provided a detailed description of the records in compliance with G. L. c. 66, § 10A(a), 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, in its Dec 4th privilege log and Dec 6th supplemental response.

Nathanial Smith SPR25/3597 Page 4 December 17, 2025 However, upon review, it is unclear how the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, because the Town stated in its December 6th supplemental response, “[t]he Town … responded to the broker, copying Town Counsel, to alert the broker of the underlying factual and legal issues involving the issues at the site…. The broker’s response and inclusion of the Town’s insurance (and counsel) to begin the process of assisting in addressing those legal issues are the second and third responses.” Further, the Town must clarify how the communications were made in confidence, because the Town explained in its December 6th response that, “[t]hose communications were shared with the Town’s insurer….” Finally, where the communications were between the Town and the Town’s insurer, it is unclear how the privilege has not been waived. Disclosing attorney-client communications to a third party generally undermines the privilege. Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Macone 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. Sincerely, Manza Arthur Supervisor of Records cc: Paul Macone