Linda L. Segal v. Wayland, Town of - Public Schools (SPR 20160314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 24,2016 SPR16/314 Dr. Paul Stein Superintendent of Schools Wayland Public Schools 41 Cochituate Road P.O. Box 408 Wayland, MA 01778 Dear Dr. Stein: I have received the petition of Linda Segal appealing the response of the Town of Wayland-Public Schools (School) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Segal requested all invoices showing all legal expenses charged to the School and Town in the FY15 and FY16 Town budgets from May 1, 2015 related to the alleged theft of a MacBook computer (Request 1) . Ms. Segal also requested salary information regarding Town employees who appeared at a related court proceeding (Request 2). In a response dated April 13, 2016, the School provided information related to Request 2 and aggregate information regarding Request 1. Ms. Segal appealed the response to Request 1 which appears to withhold responsive records under the attorney-client privilege. 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). Attorney-client privilege In the April 13 response you indicated the records responsive to Request 1 contain information that is marked as "Attorney-Client Privileged Communication-Not a Public OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Dr. Paul Stein SPR16/314 Page 2 May 24,2016 Record." The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). A records custodian claiming the attorney-client privilege under the Public Records Law 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, 449 Mass. at 450 n.9; 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 records. In addition, in a letter dated May 9, 2016, Ms. Segal indicated she is only seeking "portions of attorney invoices stating the general title of the matter, the dates of the legal services performed, and the hours, rate, and money charged for the services, including out-of-pocket expenses." The School has not shown the nexus between this information and confidential communications or opinion records that would be eligible for withholding from mandatory disclosure. I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, the School is hereby ordered, within ten (1 0) days ofthis order, to provide Ms. Segal with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the School maintains that any portion of the records responsive to Request 1 are exempt from disclosure it must, within ten (1 0) days provide to Ms.

Dr. Paul Stein SPR16/314 Page 3 May 24,2016 Segal 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. 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, § 1O (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). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 dete 1 tion or further information. cc: Ms. Linda L. Segal Mr. Mark Lanza, Esq.