Philip Demers v. Adams-Cheshire Regional School District (SPR 20160381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 22, 2016 SPR16/381 Ms. Kristen Gordon Superintendent of Schools Adams-Cheshire Regional School District 191 Church Street Cheshire, MA 01225 Dear Superintendent Gordon: I have received the petition of Philip Demers of The Berkshire Eagle appealing the response of the Adams-Cheshire Regional School District to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Demers requested records pertaining to "the recent resignation of [the] Adams-Cheshire Regional School District (School District) Superintendent." On April11, 2016, School District Chairman Paul Butler provided a response, claiming Exemption (c) and the common law attorney-client privilege to withhold records. Mr. Demers appealed this response. The Public Records Law 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 a 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 fees are paid, a records custodian must provide the responsive records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Kristen Gordon SPR16/381 Page 2 June 22, 2016 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 determination for further information. Previous appeal The requested records in this appeal are the same records that were the subject of a prior administrative appeal. See SPR 161197 Determination of the Supervisor of Records (April 1, 20 16). I found that the School District failed to state the applicability of exemptions to the records, failed to disclose non-exempt portions of the records, and failed to state with specificity exemptions related to other records. I ordered the School District to review the records responsive to the request and provide Mr. Demers with a detailed written response. In its April 11, 2016 response the School District has failed to provide the specificity required by my order and the Public Records Law and its Regulations. School District response lacked specificity Exemption (c) Exemption (c) of the Public Records Law permits records custodians to withhold or redact: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26) (c) School District Chairman Butler's response states that both the first and second clause of Exemption (c) allow the School District to redact or withhold records. The School District fails to meet its burden of explaining how each part of Exemption (c) applies to permit withholding of specific records that related to a specifically identifiable person. Attorney client privilege The School District's April 11 letter also claims that confidential communications between the School District, school committee and employees and their legal counsel are

Ms. Kristen Gordon SPR16/381 Page 3 June 22,2016 protected under the normal rules of attorney client privilege and exempt from disclosure. See Suffolk Const. Co., Inc., 449 Mass. 444 (2007). 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., at 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). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. The School District's April 11 response does not provide "detailed indices" as required by the court in Suffolk. As a result, I find that the School District failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure pursuant to the attorney-client privilege. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (stating that the statutory exemptions are narrowly construed and are not blanket in nature). Order I find the School District has failed to properly respond to a request for public records. Accordingly, the School District is hereby ordered without delay to provide Mr. Demers with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response ust be provided to this office. It is preferable to send an electronic copy of this response to thi office at pre@sec.state.ma.us. cc: Mr. Philip Demers