Lauren Steeves v. Danvers, Town of - Town Clerk (SPR 20253662)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 24, 2025 SPR25/3662 Catherine S. Ellsworth Town Clerk Records Access Officer Town of Danvers One Sylvan Street Danvers, MA 01923 Dear Ms. Ellsworth: I have received the petition of Lauren Steeves appealing the response of the Town of Danvers (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 3, 2025, Ms. Steeves requested the following: Last night the selectboard members referred to a letter they received in their packets from town counsel regarding electronic voting. That letter does not appear to be included in the selectboard packet on the town website. May I have a copy of that letter please? The Town responded on December 12, 2025. Unsatisfied with the Town’s response, Ms. Steeves petitioned this office, and this appeal, SPR25/3662, 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). 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 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

Catherine S. Ellsworth SPR25/3662 Page 2 December 24, 2025 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 12th Response In its December 12, 2025 response, the Town states the following: The memo from Town Counsel to the Select Board is protected under attorney- client privilege and is also exempt from the Public Records Law, G.L.c. 66, section 10 exemption (d) as part of the deliberative process the Select Board is undertaking with respect to electronic voting and will not be released. We understand that you have been working hard on this issue and may have questions stemming from the Select Board discussion and we are happy to try and help answer them. Please let me know if you have specific questions about the document or would like the Town Manager to summarize it, she is happy to do so. 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 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of 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). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in

Catherine S. Ellsworth SPR25/3662 Page 3 December 24, 2025 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. Based on the Town’s response, although the Town refers generally to “electronic voting,” I find it is unclear what deliberative process the responsive record relates to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the record would taint any ongoing deliberative process. Additionally, it is unclear how the responsive record constitutes the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa at 448. Further, the Town has not met its burden to show that the responsive record is not factual in nature, nor reasonably completed, nor that the record is interwoven with opinions or analysis leading to opinions. See DaRosa at 448. Any information contained in the responsive record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify these matters. 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 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 this case, the Town’s response did not contain the specificity required to withhold a record pursuant to the attorney-client privilege. Specifically, the Town must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-

Catherine S. Ellsworth SPR25/3662 Page 4 December 24, 2025 client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Town must clarify whether the communication was made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communication was made in confidence, and that the privilege as to the communication has not been waived. See Suffolk, 449 Mass. at 450 n.9. Conclusion Accordingly, the Town is ordered to provide Ms. Steeves 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. Steeves may further 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: Lauren Steeves