Peggy A. Wiesenberg v. Boston, City of - Public Schools (SPR 20160072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 1, 2016 SPR16/072 Ms. Alissa Ocasio, Esq. City of Boston-Public Schools Office ofthe Legal Advisor 111 2300 Washington Street, 4 Floor Roxbury, MA 02119 Dear Attorney Ocasio: I have received the petition of Peggy A. Wiesenb erg on behalf of QUEST, a grassroots parents group appealing the response of the City of Boston-Public Schools (BPS) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Wiesenberg requested twelve (12) separate items regarding records held by BPS and the School Committee members concerning the Boston Compact and its sub-committees. The Office of the Legal Advisor of the BPS (Legal Advisor) provided Ms. Wiesenberg with records responsive to her requests numbered 1-4, and a fee estimate to conduct a search and possible segregation of electronic records for requests numbered 7 and 11. 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). No Records Responsive The Legal Advisor informed Ms. Wiesenberg that the BPS has no records in its possession, custody or control responsive to her requests numbered 5, 6, 7 (paper records), 8, 9, 10, 11 (paper records) and 12. Ms. Wiesenberg appealed this response. A record holder's duty to comply with requests for information extends only to those records which exist and are in his 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Alissa Ocasio, Esq. SPR16/072 Page 2 March 1, 2016 Waiver of Fees In your November 23, 2015 letter, you state that the BPS waived all the costs for providing the paper records. While a records custodian may assess fees in responding to a public records request based on the Public Records Access Regulations, a custodian has discretion in waiving any applicable public records fees. Furthermore, while this office may suggest that a custodian waive fees, this office has no authority that a custodian mandate that a custodian do so. In a February 9, 2016 telephone discussion with an attorney on my staff you explained that a diligent search for paper records was conducted, and that Ms. Wiesenberg was provided with an estimate to cover a search for any electronic records and for review of those records to segregate any exempt materials within the content of the records. You were provided with a copy of the appeal file, and asked to provide a second response to Ms. Wiesenberg, which you did on February 19, 2016. However via email on February 19, Ms. Wiesenberg informed this office that the BPS and School Committee still failed to specifically respond to her requests, and that she is not seeking records of the Boston Compact itself, but records held by BPS officials and employees and School Committee members who are members ofthe Boston Compact. You were also provided with Ms. Wiesenberg's February 19 email. Attorney-client privilege The BPS and School Committee have not met its burden of supporting a claim that the attorney-client privilege allows the BPS and School Committee to withhold portions of a September 9, 2011 memorandum from Carol R. Johnson, former Superintendent ofthe BPS to the Chairperson and members of the School Committee. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Commissioner ofthe Dept. ofMental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called

Ms. Alissa Ocasio, Esq. SPR16/072 Page 3 March 1, 2016 upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, n. 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997). Based on the BPS November 22, 2015 and February 19, 2016 responses, I find that the BPS has not met its burden of proving that the redactions to the memorandum are supported by the attorney-client privilege. Accordingly, the BPS has failed to properly respond to a request for public records. The BPS are hereby ordered, within ten (1 0) days, to provide Ms. Wiesenberg with a detailed response prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the BPS 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 or each portion of a 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. 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(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). To assist the BPS 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.

Ms. Alissa Ocasio, Esq. SPR16/072 Page 4 March 1, 2016 Please contact my office directly at the telephone number prov,' ded in this determination for further information. cc: Ms. Peggy A. Wiesenberg Enclosure