Kourkoumelis, Carrie v. Melrose, City of - Public Schools (SPR 20150214)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 8, 2015 SPRlS/214 Ms. Cyndy S. Taymore Superintendent of Schools Melrose Public Schools 360 Lynn Fells Parkway Melrose, MA 02176 Dear Superintendent Taymore: I have received the petition of Carrie Kourkoumelis appealing the response of the Melrose Public Schools (School) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on March 6, 2015 Ms. Kourkoumelis requested copies ofthe following records: 1. Office of Civil Rights Notice oflnvestigation sent to Melrose Public Schools. 2. All communications between and among members of the School Committee, the Superintendent and legal counsel surrounding the Office of Civil Rights Investigation. 3. All communications (email, US Mail) between Superintendent Taymore and/or Melrose Public Schools staff and/or any members ofMelrose School Committee and all attorneys representing the Melrose Public Schools resulting in billable hours from January 2014 through the present. 4. Superintendent Taymore's phone log indicating contact with any and all attorneys representing the Melrose Public Schools resulting in billable hours from January 2014 through the present. In her petition Ms. Kourkoumelis references her status as "an elected member of the Melrose School Committee." Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content ofthe record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In any event, Ms. Kourkoumelis' statements have no bearing on this matter as her status does not grant her any greater right of access under the Public Records Law. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Cyndy S. Taymore SPR15/214 Page Two July 8, 2015 In your response dated March 16, 2015, you provided a record responsive to Request 1. You denied Request 2 and Request 3, claiming "to the extent any such documents exist" the responsive records may be withheld pursuant to the attorney-client privilege and Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). With respect to Request 4, you indicated that there are no responsive documents. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. With respect to Request 1, it is my understanding that the School previously provided Ms. Kourkoumelis with a redacted copy of the document responsive to this request. As indicated above, you provided another copy of the responsive record on March 16, 2015 that appears to be unredacted. In her petition to this office Ms. Kourkoumelis states that there is no date on the document provided on March 16, 2015. As a result, Ms. Kourkoumelis states this "possibly indicates to me that again this is not a fully unredacted copy" of the record and "[a]s such, I would like a date/time-stamped copy of the document as it was received originally." Ms. Kourkoumelis also indicated in her petition to this office that she is "seeking an explanation from administration about their justification for redaction of the first version of the document they sent to me, since [the March 16, 20 15] version was sent without explanation." These requests for a date/time stamped copy of the document and an explanation justifying the redactions in the first version of the document the School sent to her were not part of Ms. Kourkoumelis' March 6, 2015 request. Further, these requests should be directed to the School and not this office because the Division of Public Records is not a warehouse for all government records. As such, I will not opine on whether the School complied with these requests; however, Ms. Kourkoumelis may make a new request to the School for these documents. With respect to Request 4, the School's response states "there are no responsive documents to your request. To the extent any such documents did exist, all, or portions of, such documents may be protected from public disclosure under the normal rules of the attorney-client privilege and the deliberative process exemption at [G. L.] c. 4, § 7(26)(d)." A record holder's

Ms. Cyndy S. Taymore SPR15/214 Page Three July 8, 2015 duty to comply with requests for information extends only to those records which exist and are in her custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Whereas the School has no records responsive to Request 4, I will consider this portion of Ms. Kourkoumelis' appeal closed; however, the School is advised to avoid citing exemptions for requests in which no records exist. With respect to Request 2 and Request 3, the School provided nearly identical responses and stated "to the extent any such documents exist, the [School] is denying your request as any such responsive documents are protected from public disclosure under the normal rules of the attorney-client privilege and the deliberative process exemption at M.G. L. c. 4, § 7(26)(d)." As a result, an analysis of the attorney-client privilege and Exemption (d) is appropriate. Common law attorney-client privilege The attorney-client privilege protects confidential communications between an attorney and his client. However, in order for the claim of attorney-client privilege to be valid, the custodian 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). The School failed to meet its burden of explaining with specificity how the responsive records may be withheld pursuant to the attorney-client privilege because it fails to prove the existence of an attorney-client relationship. Further, it does not address whether the communications were received during the course of the client's search for legal advice, nor whether the communications were made in confidence, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. 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

Ms. Cyndy S. Taymore SPR15/214 Page Four July 8, 2015 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 ofthe 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. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). The School's written response does not explain with specificity what legal or policy positions the records responsive to Request 2 and Request 3 are related to, nor does it explain how their disclosure would taint the deliberative process. Instead, the School's response merely cites Exemption (d) without any further explanation as to the exemption's applicability to the requested records. The School is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, the School failed to meet its burden of explaining with specificity how records responsive to Request 2 and Request 3, in their entirety, are exempt from disclosure pursuant to the attorney-client privilege and Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (stating that the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, I find the School has not satisfied its burden in proving with specificity why records responsive to Request 2 and Request 3 have not been made available by failing to clearly indicate whether the requested records exist and are in its possession. Accordingly, whereas the School has not overcome the presumption that records responsive to Request 2 and Request 3 are public, the School is hereby ordered, within ten (10) days of this order, to provide Ms. Kourkoumelis with the requested records. Ifthe School maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days, provide to Ms. Kourkoumelis a written explanation, with specificity, how a particular exemption applies to each record. 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. Such a response must confirm whether the records responsive to Request 2 and Request 3 exist and are in the School's possession. If the responsive records are not in the School's possession, it must clearly indicate such in its response. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Ms. Cyndy S. Taymore SPR15/214 Page Five July 8, 2015 cc: Ms. Carrie Kourkoumelis