Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20160043)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 18, 2016 SPR16/043 Ms. Amy M. Rogers, Esq. Lyons & Rogers, LLC 800 Hingham Street, Suite 204S Rockland, MA 02370 Dear Attorney Rogers: I have received the petition of Jeanne Teichert appealing the response of the Andover Public Schools (School) to her October 9, 2015 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Teichert requested copies expense records of the School, including special education reports "relating to budget, enrollment and transportation" (Request 1) . Ms. Teichert also requested copies of "invoices, warrants and related billing documents" related to School expenses for "all legal firms paid" by the schools (Request 2), as well as "reports created relating to any school department legal expenses" (Request 3). The time period for this request is the last five fiscal years, "FY 2011 - FY 2015." Previous determination This request was the subject of a previous appeal. See SPR15/824 Determination of the Supervisor of Records (December 30, 2015). In my December 30 determination I found the School had yet to explain how an exemption to the Public Records Law may apply to the responsive records. Further, I found the School had not met its burden to justify the amount of time described in its October 14 fee estimate and that it must clarify the hourly rate of the attorney that will make any necessary redactions. As a result, I ordered the School to provide Ms. Teichert with a revised written response to her request for records prepared in compliance with that order, the Public Records Law and its Access Regulations (Regulations). The School provided a response to this order in a letter dated January 14, 2016. Ms. Teichert appealed the January 14 response and this appeal was opened as a result. Subsequent to the opening of this appeal, the School provided a supplemental response dated January 29, 2016. Basis of withholding or redacting invoices responsive to Request 2 In the January 14 response, you indicate the School provided Ms. Teichert with summaries of legal expenses and that the outstanding issue is the public status of responsive legal invoices. You explain it is the School's position that the responsive invoices "contain OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Amy M. Rogers, Esq. SPR16/043 Page 2 February 18, 2016 privileged attorney-client communication and attorney-work product and are not subject to disclosure." You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) and DaRosa v. New Bedford, 471 Mass. 446 (2015) to support this position. The School believes the invoices are exempt from disclosure in their entirety or, "at the very least," subject to redaction by an attorney. In addition, you indicate information identifying a student would be redacted because the School is bound by federal state and family privacy laws. 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). Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A.3d 994, 1001 (2011) (citing Cypress Media v. City of Overland, 997 P.2d 681, 691, 693 (2000)). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A. 3d at 1002. Further, the Court refused to adopt a per se rule that all descriptive narratives contained in invoices for legal services are subject to the attorney-client privilege. Id . at 1001. As in Hampton, the School's response fails to explain with specificity why the attorney client privilege applies to withhold the entirety of the responsive invoices. Although you state responsive invoices may contain an "in-depth and detailed description of the work performed, and time charged," I find the School has yet to explain how the entirety of the responsive invoices may be withheld under the attorney-client privilege or attorney work product. Further, each redaction under the attorney-client privilege would need to be supported by the standards outlined in Suffolk. Redacting information identifYing a student The School also claims information identifying a student would need to be redacted from the invoices under "federal student and family privacy laws." You cite 20 U.S.C. §1232g to

Ms. Amy M. Rogers, Esq. SPR16/043 Page 3 February 18, 2016 support this claim. Please be advised that in order to properly redact this information, the School is required to cite an exemption to the Public Records Law and specifically explain how the exemption would apply to the information. G. L. c. 66, § 1 0(c ). Fee estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1 O(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). As discussed above, in the January 14 response, you explain the School believes the invoices are exempt from disclosure in their entirety; however, you also state "at the very least, each legal invoices would require review and redactions by an attorney with knowledge of what constitutes privileged attorney client communication and attorney work product." You estimate the cost of this review would be approximately $3,500.00. This amount is comprised of twenty (20) hours of"redaction time" at $175.00 per hour for an attorney to review seventy-one (71) responsive invoices from Lyons & Rogers, LLC. In the January 29 response, you explain that the estimated cost to provide sixty (60) responsive invoices from another law firm, Deutsch Williams, is $2,520.00. This cost is comprised oftwelve (12) hours to redact them at an attorney's rate of$210.00. Thus, the total estimated cost to provide the responsive invoices is $6,020.00. I find the School has yet to explain why it requires thirty-two (32) hours to review and redact the responsive invoices, nor why the hourly rate of an attorney must be charged to review all the invoices. Therefore, I find the School has not met its burden to justify the cost estimates described in the School's January 14 and January 29 fee estimates. Unclear if responses address each ofp ortion ofM s. Teichert's request As discussed above, Ms. Teichert's request contained three (3) categories of records. Although the School provided Ms. Teichert with summaries of legal expenses and a fee estimate for the provision of records responsive to Request 2, it is unclear if the School possesses any other records responsive to Request 1 and Request 3. See 950 C.M.R. 32.03 (defining

Ms. Amy M. Rogers, Esq. SPR16/043 Page 4 February 18, 2016 "custodian" as the government employee who in the normal course of her duties has access to or control over records). Conclusion For the reasons discussed above, the School is hereby ordered, within ten (1 0) days, to provide Ms. Teichert with a revised written response to her request for records. This response, prepared in compliance with this order, the Public Records Law and its Regulations, must contain a revised fee estimate and a statement as to whether the School possesses any other records responsive to Request 1 and Request 3. If the School maintains that any portion of the responsive records are exempt from disclosure it must provide 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the School in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for furt er information. Supervisor of Records Enclosure cc: Ms. Jeanne Teichert