Mooney, Eileen v. Great Barrington, Town of - Office of the Town Clerk (SPR 20260071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2026 SPR26/0071 Joshua Risen Town Clerk Town of Great Barrington 2 Bernard Gibbons Drive Great Barrington, MA 01230 Dear Mr. Risen: I have received the petition of Eileen Mooney 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 December 18, 2025, Ms. Mooney requested an un-redacted copy of an invoice identified as “invoice 155175.” The Town responded on January 5, 2026 and January 7, 2026. Unsatisfied with the Town’s responses, Ms. Mooney petitioned this office and this appeal, SPR26/0071, 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 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. 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 SPR26/0071 Page 2 January 22, 2026 The Town’s January 5th and January 7th Responses In its January 5, 2026 response, the Town provided a copy of the identified invoice, subject to redactions. Ms. Mooney subsequently requested “an explanation of why each redaction was made,” and stated, “I want to know what specific section of the Public Records Law or Open Meeting Law enables each redaction.” In its January 7, 2026 response, the Town provided a document authored by the Town Manager dated January 6, 2026, citing the attorney-client privilege and the attorney work product doctrine in support of the Town’s redactions. Current Appeal In her appeal petition, Ms. Mooney stated, “I am not aware of any law that enables redactions in an invoice.” Attorney Work Product 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 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) of the Public Records Law. 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

Joshua Risen SPR26/0071 Page 3 January 22, 2026 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. 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 the Town Manager’s January 6, 2026 response, the Town stated: As the response regarding the December 18th PRR stated, a copy of the full Town Counsel invoice for August, 2025 (no. 155175) included with the response was partially redacted for attorney-client privilege and attorney (Town Counsel) work product reasons. Under the Public Records Law… certain information may be withheld or redacted under exemptions to the Law, other applicable provisions of law, and/or common law privileges. Information concerning the content of communications between a town counsel and the client town is subject to the attorney-client privilege. Such confidential communication is exempt from disclosure under the Public Records Law… Also, documents prepared “‘because of’ existing or expected litigation” qualify as attorney work product. Based on the Town’s responses, it is unclear how the redactions to the invoice under the attorney work product doctrine constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. In this case, the Town has not demonstrated that all of the withheld information is not factual in nature, nor that the withheld information is interwoven with opinions or analysis leading to opinions. Id. The Town must clarify these matters.

Joshua Risen SPR26/0071 Page 4 January 22, 2026 Additionally, the Town must provide a detailed description of the communications withheld under the attorney-client privilege, including the names of the author and recipients, the date, the substance of such withheld communications, and the grounds upon which the attorney- client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). The Town must also clarify whether all of the communications withheld under the attorney-client privilege were between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such. Further, the Town must also provide information regarding whether the communications were made in confidence and demonstrate that the privilege has not been waived. Conclusion Accordingly, the Town is ordered to provide Ms. Mooney 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. Mooney may 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: Eileen Mooney