Andrew Rovan v. Stow, Town of - Town Administrator (SPR 20253641)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 24, 2025 SPR25/3641 Denise M. Dembkoski Town Administrator Town of Stow 380 Great Road Stow, MA 01775 Dear Ms. Dembkoski: I have received the petition of Andrew Rovan appealing the response of the Town of Stow (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2025, in a request identified as “Request #5,” Mr. Rovan sought the following records from the period of October 20, 2025 to November 21, 2025, regarding “the Conservation Commission’s November 18, 2025 meeting, specifically the agenda item labeled: [‘] . . . Great Road — Enforcement Update”[:] [1] All materials reviewed, presented, referenced, discussed, or relied upon by the Commission during the agenda item “. . . Great Road — Enforcement Update,” including but not limited to: Staff reports[,] Inspection notes[,] Emails and attachments[,] Memos[,] Photographs[,] Maps[,] GIS output[,] Aerial imagery[,] Complaints[,] Site-visit notes[,] Enforcement drafts[,] Prior correspondence[,] [and] Draft meeting minutes[;] [2] All documents prepared in anticipation of the meeting, including: Packets[,] Memoranda[,] Summaries[,] Staff recommendations[,] Draft enforcement language[,] Draft findings[,] [and] Draft votes[;] [3] All communications between any Conservation Commission member, Town staff members, or Town officials . . . relating to: . . . Great Road[,] Enforcement update[,] Pond/wetland classification[,] Alleged violations[,] Aerial imagery[,] Site visits[,] Complaints[,] [and] [a]ny preparatory discussion for Nov. 18 meeting[;] [4] All Zoom-related records for the Nov. 18 meeting, including: Attendance logs[,] Chat logs[,] Meeting host records[,] Moderator reports[,] Recordings . . .[,][and] . . . [a]ny transcript or auto-caption file[;] [5] Any draft, proposed, or final enforcement action documents, including: Draft enforcement letters[,] Draft orders[,] Draft findings[,] Draft votes[,] [and] Draft 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

Denise M. Dembkoski SPR25/3641 Page 2 December 24, 2025 determinations[;] [6] All correspondence . . . relating to the Nov. 18 agenda item “. . . Great Road — Enforcement Update,” including but not limited to: emails[,] text messages[,] Teams/Slack/Signal messages[,] handwritten notes[,] interdepartmental communications[,] communications involving Conservation, DPW, Town Administrator, Select Board, or legal counsel[,] [and] communications created before, during, or after the Nov. 18 meeting[.] The Town responded on December 8, 2025. Unsatisfied with the Town’s response, Mr. Rovan petitioned this office, and this appeal, SPR25/3641, was opened as a result. While this appeal was pending, the Town provided additional information in an email to this office on December 22, 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. 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. The Town’s December 8th Response In its December 8, 2025 response, the Town provided a SharePoint link to numerous responsive records, which, as noted in the Town’s correspondence, included “inspection notes, GIS output, complaints, draft enforcement documents, draft votes, Zoom-related records, meeting staff report, agenda packet, emails, other forms of communication, and the meeting recording, as well as the draft minutes.” The Town also provided a link to the “Agenda Center” as located on the Town’s website and advised, “there are also publicly available documents available on the Town’s website[.]” The Town further explained that Mr. Rovan may access the publically available responsive records “by selecting the category [‘]Conservation Commission[’] from the [‘]Select a Category[’] dropdown menu and navigating to the November 18, 2025 meeting date[.]” The Town additionally cited the attorney-client privilege to withhold

Denise M. Dembkoski SPR25/3641 Page 3 December 24, 2025 records and provided a privilege log in support of its claims. Current Appeal In his December 8, 2025 appeal petition, Mr. Rovan objects to the Town’s claims under the attorney-client privilege. Specifically, he states that the Town, “withheld items [concerning] legal advice publicly discussed at the Commission’s November 18 meeting, which raises concerns about waiver. Because the Town voluntarily disclosed reliance on this legal advice during a public hearing, privilege has been impliedly waived.” Mr. Rovan further contends that there are, “[o]missions in the Town’s [p]roduction” of records responsive to his request and notes, “[b]ecause I have not yet completed a full cross- reference of all provided documents, I do not assert intentional withholding.” He goes on to state, “[s]everal categories [sic]— such as internal drafts, staff recommendations, inter-department emails, and pre-meeting preparatory documents — may be missing. . .” and additionally contends that, “[t]he Town did not provide Zoom attendance logs or chat logs. . .” 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, 450 n.9 (2007); 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 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 December 8, 2025 response, the Town enclosed a privilege log and noted that, the Town has asserted the attorney-client privilege for [two] responsive [records].” Upon review, the Town’s privilege log lists two records withheld under the attorney-client privilege, and includes the date of the records, as well as the substance of the communications contained in the records. The log additionally includes the names of the individuals whom the communications are between, but does not list the author or recipients. In its December 22, 2025 correspondence to this office, the Town confirmed that the

Denise M. Dembkoski SPR25/3641 Page 4 December 24, 2025 privilege as to withheld records has not been waived. Specifically, the Town stated that it, “has not waived privilege regarding the details of the legal opinion from Town Counsel contained in the privilege log.” Additionally, in a telephone conversation with this office on December 23, 2025, the Town further clarified that the communications contained in the withheld records were received from an attorney during the course of the Town’s search for legal advice from Town Counsel and attorneys for KP Law, P.C., in his or her capacity as such, and further confirmed that the communications contained in the records were made in confidence. Upon review, the Town has satisfied the requirement that the communications were received from an attorney working on behalf of the Town during the course of the Town’s search for legal advice from the attorney in his or her capacity as such where the Town confirmed this in its December 23, 2025 conversation with this office. The Town has satisfied the requirement that the communications were made in confidence, where the Town confirmed in its December 23, 2025 conversation with this office. Finally, the Town has satisfied the requirement that the privilege as to these communications has not been waived where it notes in its December 22, 2025 correspondence, as noted above, that it, ““has not waived privilege regarding the details of the legal opinion from Town Counsel contained in the privilege log.” However, although the Town has provided some information regarding these records, I find that in accordance with G. L. c. 66, § 10A(a), the Town must provide additional information regarding “the names of the author and recipients . . . and the grounds upon which the attorney- client privilege is being claimed.” The Town must clarify these matters. Unclear Appeal Ms. Rovan is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In this case, where Mr. Rovan indicates in his appeal that he has “not yet completed a full cross- reference of all provided documents[,]” and further notes that “[s]everal categories” of records “may be missing[,] I find that this portion of Mr. Rovan’s appeal is unclear. Mr. Rovan additionally contends in his appeal that, “[t]he Town did not provide Zoom attendance logs or chat logs, despite requesting them.” However, copies of the responsive records that the Town provided in its December 8, 2025 response were not provided by Mr. Rovan in his appeal to this Division. See 950 C.M.R. 32.08(1)(g) (requesters shall provide to the Supervisor complete copies of all correspondence associated with the petition). Accordingly, I am unable to opine on this portion of Mr. Rovan’s appeal at this time. Mr. Rovan may wish to clarify his specific objections to the Town’s December 8, 2025 production of records within 90 days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the Town is ordered to provide Mr. Rovan with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Denise M. Dembkoski SPR25/3641 Page 5 December 24, 2025 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: Andrew Rovan