Espindola, Robert v. Fairhaven, Town of - Planning Board (SPR 20260589)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2026 SPR26/0589 Elisabeth E. Horan Town Clerk Town of Fairhaven 40 Center Street Fairhaven, MA 02719 Dear Ms. Horan: I have received the petition of Robert Espindola appealing the response of the Town of Fairhaven (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2026, Mr. Espindola requested “executive session meeting minutes from 6/14/2022, 12/13/2022, 2/19/2025, 9/9/2025, 10/14/2025, 10/28/2025, 11/18/2025 and 12/16/2025.” The Town responded on February 12, 2026. Unsatisfied with the Town’s response, Mr. Espindola petitioned this office and this appeal, SPR26/0589, 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

Elisabeth E. Horan SPR26/0589 Page 2 March 4, 2026 The Town’s February 12th Response In its February 12, 2026 response, the Town provided a detailed privilege log of the withheld minutes and stated: …the Planning Board Executive Session minutes listed in your records request had not been approved for release at that time. The Planning Board met jointly with the Select Board to discuss the possible release of those minutes. Following that discussion, the requested documents are being withheld pursuant to the attorney-client privilege. Current Appeal In his appeal petition, Mr. Espindola stated that “[t]he underlying litigation referenced by the Town has been fully resolved [and] [t]he Town has not demonstrated that continued nondisclosure is warranted.” Additionally, Mr. Espindola argued, “[t]he Open Meeting Law requires release of executive session minutes ‘once the purpose for which the executive session was held has been served.’” In a telephone conversation with this office on March 3, 2026, an attorney for the Town confirmed that its basis for withholding the responsive records is the attorney-client privilege. In a further letter to this office, the Town explained: The requested public records were properly withheld to preserve the attorney- client privilege pertaining to the subject communications, which were made in pursuit of the clients’ search for legal advice. As set forth in the privilege log provided with the Town’s response to this public records request, the response includes the subject, author, recipients, date, and grounds upon which the privilege is claimed for each requested record. The privilege log further indicates that the communications were made in confidence and that the privilege has not been waived. The records are privileged in their entirety, and therefore segregation is not warranted. There is no expiration date for this privilege[.] 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

Elisabeth E. Horan SPR26/0589 Page 3 March 4, 2026 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). Upon review of the Town’s privilege log, the Town has provided a detailed description of the records withheld, including the author and recipients, the date, the substance of such records, and the grounds upon which the attorney-client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). Further, the Town has satisfied the requirement that the communications 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. The Town has also satisfied the requirements that the communications were made in confidence and that the privilege as to these communications has not been waived. Therefore, I find that the Town has met its burden to withhold the identified records under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Espindola is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Robert Espindola