Town Counsel's 'Privileged and Confidential' Memos Draws Ire of Planning Board Member

One member of the Hamilton Planning Board does not think the board should be accepting documents from the town attorney labeled “privileged and confidential.”

“I don’t believe this board should be accepting any privileged and confidential memorandums from Donna Brewer or anyone else,” said Planning Board member Ed Howard.

Howard made a motion for the board to not accept the memo at a meeting last week at . Another board member did not second it.

Howard is one of 20 Hamilton residents .

Brewer's reappointment as town counsel is in the hands of Town Manager Michael Lombardo and is not in the hands of the Planning Board. The board, instead, was recieving legal advice on three different inquiries, including whether it should have gone into executive session at a previous meeting and questions about how specific the board's minutes need to be. The memo is atatched to this story as a PDF.

Brewer said that whenever she provides legal advice or responds to a legal inquiry, the document is labeled as “privileged and confidential” with a paragraph at the top indicating that the memo is protected from disclosure under the Public Records Law, based on state law and case law, because it is designed to help town officials develop a policy position.

“I don’t control the privilege,” Brewer said in an interview. “If the Planning Board wants to waive it, this is their purview.”

Many of the memos Brewer writes as town counsel include the paragraph at the top, Brewer said. In some circumstances, her work is not legal advice and that would not include the paragraph outlining the protection from public release. A memo, a few years ago, outlining the process that the regional school district budget is adopted and appropriated, was not legal advice and was a public record, for example, she said.

But changes to the Open Meeting Law, passed in 2010, say that documents used or discussed in a public meeting are a public record. But that does not override the attorney-client privledge, Breweer said.

The memo to the Planning Board was in response to three legal questions from the Planning Board. The board said it understood Brewer’s responses.

Rick Mitchell, a Planning Board member, said that if the board did not want to disclose the memo it could withhold it. Board member Joe Orlando, who is an attorney, said that the option to disclose the memo is up to the board, which is the client in the attorney-client privilege. And it chose to release it as it was being discussed last week.

Correction: This story was updated to show that Brewer does not think the Open Meeting law overrides attorney-client privilege when a board discusses a memo from town counsel.