Anderson, Dave v. Westport Town of (SPR 20260583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2026 SPR26/0583 Kristin Stinson Town Clerk Town of Westport 816 Main Road Westport, MA 02790 Dear Ms. Stinson: I have received the petition of Dave Anderson, of the Energy and Policy Institute, appealing the response of the Town of Westport (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 1, 2025, Mr. Anderson requested: … copies of electronic messages, including attachments, sent and received by [five identified individuals] , that mention the following topics: [1] “Eversource”[;] [2] “Ballot initiatives”[;] [3] “Utility billing”[;] [4] “Offshore wind”[;] [5] “Vineyard Wind”[;] [6] “Revolution Wind”[;] [7] “Sunrise Wind”[;] [8] “New England Wind”[.] I’m also requesting electronic communications between each of the Town of Westport officials listed above and [an identified individual]. For the purposes of this request, electronic communications include all relevant emails, text messages, and mobile-phone-based/computer-based text communications, including but not limited to Telegram, Signal, WhatsApp messages. I am limiting my request to electronic communications created between November 1, 2024 and December 1, 2025. 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

Kristin Stinson SPR26/0583 Page 2 March 3, 2026 The Town responded on December 3, 2025, January 9, 2026, and January 30, 2026. Unsatisfied with the Town’s response, Mr. Anderson petitioned this office and this appeal, SPR26/0583, 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. Current Appeal In his appeal petition, Mr. Anderson contends: [The Town]’s denial was improper because (i) my request reasonably describes the records I am seeking, (ii) messages on private email accounts and devices that pertain to official government business are public records that should be provided in response to my request, (iii) [The Town] has not properly raised any exemption or privilege, and (iv) [The Town]’s denial was deficient according to the requirements of the Massachusetts Public Records Law. … … the Town produced several responsive records from [an identified individual]’s search that were sent to and from [an identified individual]’s personal Gmail account, and those emails should have also been produced by [an identified individual]. … The existence of these emails and others provided by [an identified individual] indicates that [an identified individual] should have provided records in response to my request and that [an identified individual] may possess additional responsive emails that I have not already received from [an identified individual].

Kristin Stinson SPR26/0583 Page 3 March 3, 2026 The Town’s Responses On December 3, 2025, the Town stated, “I have forwarded your request to the appropriate parties. I do not have any conversations regarding the topics you have requested other than standard meeting postings which are also posted under agendas on our website or occasional emails regarding ‘pole locations’ which are standard administrative tasks.” Later on December 3rd, the Town stated, “I will gather the related emails I have and send them over to you in the next few days.” Later on December 3rd, the Town stated: After reviewing the requester’s submission, I must state that the request forwarded to me, as written, is not legally compliant. Under M.G.L. c. 66, § 10(a)(i), a requester must reasonably describe the public records sought. The present request does not meet that standard. It demands a sweep across every messaging platform on my personal devices and seeks broad subject categories that extend into my legal practice, my ballot access company, and personal communications. Such a request does not identify any specific public record and therefore fails the threshold requirement of the statute. … Nothing in the Public Records Law obligates a public official to conduct a device- wide search of all personal communications. The statute requires production only of records made or received in an official capacity. A request that indiscriminately targets all communications with particular individuals, regardless of context, necessarily reaches material outside any municipal function and exceeds the scope of M.G.L. c. 66, § 10. Any review that would be required to segregate personal, business, political, and privileged material from any public records significantly increases the magnitude and difficulty of the request within the meaning of M.G.L. c. 66, § 10(b)(v). The statute expressly recognizes that such magnitude or difficulty may unduly burden municipal responsibilities. It also requires consideration of whether a request, or a series of requests, is frivolous or intended to harass or intimidate under M.G.L. c. 66, § 10(c)(v). The structure and breadth of this submission raise significant concerns in this regard. Also, the Town stated that it withheld certain records pursuant to attorney-client privilege and Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). On January 9, 2026, the Town stated, “I did not receive a response from [two identified individuals] so I just reached out again just in case it got lost in the mix.”

Kristin Stinson SPR26/0583 Page 4 March 3, 2026 On January 30, 2026, the Town stated, “I had our IT department gather all of [an identified individual’s] emails regarding your request as forwarded. [Another identified individual] has stated she does not have available emails for you and the town does not have access to her personal email.” The Town then provided some responsive records. 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 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. In its response, the Town states: Additionally, names listed in the submission may include individuals for whom I serve as legal counsel. Communications created in the course of legal representation are protected by attorney-client privilege, which belongs to the client, and are exempt from disclosure under M.G.L. c. 4, § 7, cl. 26(d). Based on the Town’s responses, it is unclear how the responsive records 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

Kristin Stinson SPR26/0583 Page 5 March 3, 2026 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. 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). Based on its December 3rd response, I find the Town has not met its burden in claiming the attorney-client privilege to withhold the responsive records. Specifically, the Town must provide an index comprised of a detailed description of each record withheld pursuant to the attorney-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 a client’s search for legal advice from an attorney in his or her capacity as such, whether the communication was made in confidence, and whether the privilege as to the communication has not been waived. Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently

Kristin Stinson SPR26/0583 Page 6 March 3, 2026 ‘related’ to the category of materials requested, will not satisfy this statutory standard.” (emphasis in original). Id. The Town is further 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 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 this case, Mr. Anderson has provided descriptions of the categories of records he is seeking, including, among other things, a timeframe, classes of records, and a list of senders or recipients. Consequently, I find that he has provided sufficient particularity required to identify the documents he is seeking. Possession, Custody, or Control Please be 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). In cases where records are created in furtherance of Town business, the Town has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. Conclusion Accordingly, the Town is ordered to provide Mr. Anderson 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. Mr. Anderson may further appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kristin Stinson SPR26/0583 Page 7 March 3, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Dave Anderson