Espindola, Robert v. Fairhaven, Town of (SPR 20261095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2026 SPR26/1095 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 March 3, 2026, Mr. Espindola made the following request: During last night’s Select Board meeting, you requested and received approval from the Select Board to post the Executive Summary document from the Timothy-Hiller Constructive Approval on the Town website today… If it has been posted, can you please provide a link to where we can find it and, if it has not yet been posted, can you please let us know on what section of the website we will be able to find it once it is posted. Additionally, the statement was made that the full report would not be made available to the public because Attorney-Client Privilege has not been waived. Can you please explain what Attorney that is in reference to (i.e. is it the Town Attorney, an Attorney representing someone interviewed, etc.)? The Town responded on March 3, 2026, March 9, 2026, and March 10, 2026. Unsatisfied with the Town’s responses, Mr. Espindola petitioned this office and this appeal, SPR26/1095, was opened as a result. While this appeal was pending, the Town provided a further response on March 27, 2026. 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 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 SPR26/1095 Page 2 April 2, 2026 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. The Town’s March 3rd, March 9th, and March 10th Responses In its March 3, 2026 response, the Town provided a link to the responsive record and stated: The Executive Summary link can be found by clicking on View Calendar on the front page, choose the March 2nd Select Board meeting from the calendar and there is a link entitled Timothy/Hiller Subdivision – Revised Executive Summary. Click on the Revised Executive Summary and you will be directed to the summary… The Attorney/Client privilege is between the author of the report and the Town of Fairhaven. Following additional inquiries about the content of the responsive record, the Town stated on March 9, 2026, “[a] Select Board Member would like to further discus the investigation.” In two responses on March 10, 2026, the Town stated, “[t]he Select Board voted to not release the entire report… The Select Board decided to exercise their attorney/client privilege.” Current Appeal In his appeal petition, Mr. Espindola stated: …we respectfully request a determination regarding the Town of Fairhaven’s decision to withhold in its entirety a taxpayer-funded investigative report… [T]he Town has publicly released an Executive Summary of the investigation while withholding the full investigative report in its entirety based on attorney-client privilege. This selective disclosure raises significant concerns regarding whether the privilege has been waived or improperly invoked.

Elisabeth E. Horan SPR26/1095 Page 3 April 2, 2026 In a further response to Mr. Espindola and this office on March 27, 2026, while this appeal was pending, the Town stated: Mr. Espinosa has submitted no written request for the full report… Had a request for the full report been made, the Town would have provided the information required by G.L. c. 66, § 10A(a). As indicated in the Executive Summary, the report was created by Special Counsel… and received by me as Town Administrator. The Select Board members have reviewed it but not given a copy. The substance of the report is described in the Executive Summary. The grounds upon which the privilege is claimed is that it was commissioned to inform the Select Board of the circumstances that led to constructive approval of a definitive subdivision to advise regarding potential negligence or wrongdoing by town officials and potential changes in procedure to avoid recurrence. In reply to the Town on March 27, 2026, Mr. Espindola submitted an updated request as follows: We were not aware that we would also need to ask the Town Clerk’s office to release something that the Select Board had determined they would not release but here is my official request[:] I… am formally requesting that the Town of Fairhaven release the entire report of the “Investigation Into Circumstances That Led To The Constructive Approval Of The Timothy/Hiller Subdivision… February 18, 2026.” While the Executive Summary has been released, the full detailed report has not... In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that Mr. Espindola submitted his request for an identified “entire report” on March 27, 2026, and his appeal pertains to a March 3, 2026 request for an “Executive Summary document,” which he has been provided, I find that no violation of G. L. c. 66, § 10 has been asserted by Mr. Espindola in the appeal petition, and I am unable to issue a determination at this time. Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain once Mr. Espindola receives the response to his March 27, 2026 request, or if the Town fails to provide a response within the statutory timeframe, Mr. Espindola may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1).

Elisabeth E. Horan SPR26/1095 Page 4 April 2, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Robert Espindola Keith R. Hickey