Foley, Kathryn v. Adams, Town of - Town Clerk (SPR 20260823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2026 SPR26/0823 Haley Meczywor Records Access Officer Town of Adams 9 Park Street Adams, MA 01220 Dear Ms. Meczywor: I have received the petition of Kathryn Foley appealing the response of the Town of Adams (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2026, Ms. Foley requested, “. . . all records between the Town of Adams employees and legal counsel regarding me, my farm (Aisling Mountain Farm) and my property located at . . . West Rd? This includes, but is not limited to invoices and payments for legal services pertaining thereto.” The Town responded on March 1, 2026. Unsatisfied with the Town’s response, Ms. Foley petitioned this office and this appeal, SPR26/0823, 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. 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

Haley Meczywor SPR26/0823 Page 2 March 19, 2026 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 March 1st Response In its March 1, 2026 response, the Town asserted the attorney-client privilege to withhold responsive records. The Town further provided “[t]hree (3) non-privileged responsive communications, which are not withheld because they involve a third party” and “[t]wo (2) [redacted] bills that reference you and/or your farm.” Current Appeal In her appeal, Ms. Foley contends: 1. The Town Has Not Met Its Burden to Establish Attorney-Client Privilege 2. The Attorney-Client Privilege Log is Neither Comprehensive nor Specific: a. There is no evidence that most of the documents on the Privilege Log are confidential b. It cannot be determined that all documents on the Privilege Log were for the purpose of seeking or rendering legal advice 3. The Board of Health acted as an adjudicatory body during an appeal. . . . 4. The Town’s Production is Not Complete[:] On October 15, 2025 the Selectmen presented a log at an open meeting. The log was an accounting of legal fees incurred for Open Meeting Law violation complaints and Public Records requests. This document indicates that the Town incurred legal fees related to a Public Records request submitted by me in the months preceding the meeting. Despite this evidence, the Town has not disclosed any responsive records or reasons for the records to be withheld. 5. Records from Prior Town Counsel are Not Included in the Town’s Response[:] KP Law, the Town’s current counsel, began representing the Town on or about June 5, 2024. The Town’s response appears to focus exclusively on communications occurring after KP Law’s engagement and does not account for records created before that date. I also communicated directly with KP Law to clarify that the request was not date-limited to the period of their representation. To the extent responsive records exist from prior Town Counsel, those records remain responsive and must be identified and produced. 6. Redactions Appear Improper and Inconsistently Applied[:]

Haley Meczywor SPR26/0823 Page 3 March 19, 2026 The Records Access Officer redacted portions of the invoices provided, identifying the redactions as “matters not covered by your request.” However, other portions of the same invoices that also appear to fall outside the scope of my request were not redacted. The inconsistent application of this standard raises concerns about whether the review was conducted with care. 7. The Town Failed to Comply with the Duties of Segregation and Specificity[:] The attorney-client privilege exemption, where applicable, does not justify blanket withholding. . . . 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 (2017); 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). On March 1, 2026, asserting the attorney-client privilege, the Town stated, “. . . please find attached: [a] Privilege Log detailing the responsive communications withheld pursuant to the attorney-client privilege. For context, please note these are ordered as they appear in the batches of communications collected.” Based on the Town’s response, I find that the Town has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Town must clarify 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, that the communications were made in confidence, and that the privilege as to these communications has not been waived. Further, the Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. Although the Town provided the dates, the names of the author and recipients, and the subject and topic of the

Haley Meczywor SPR26/0823 Page 4 March 19, 2026 communications, the grounds on which the attorney-client privilege are being claimed remain unclear. Pursuant to G. L. c. 66, § 10A(a), the Town must provide additional information in the privilege log regarding the grounds on which the attorney-client privilege is being claimed. Burden of Specificity In its March 1st response, regarding the redactions to the two bills, the Town stated, “[p]lease further note that the redacted portions relate to matters not covered by your request. To provide you with sufficient context, however, I left the ‘Public Records Request’ portions of the bills fully unredacted.” The Town is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Town’s response, it is unclear which exemption the Town is citing in order to redact the bills. Therefore, the Town must explain the specific exemption or exemptions of the Public Records Law that apply. Additional Records Based on the Town’s response and in conjunction with the information provided in Ms. Foley’s appeal, it is unclear if the Town possesses additional records responsive to the request. Specifically, it is unclear whether the Town possesses the records described in Items 4 and 5 of Ms. Foley’s appeal petition. 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). 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). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Ms. Foley 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. Foley may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Haley Meczywor SPR26/0823 Page 5 March 19, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Kathryn Foley