Linda L. Segal v. Wayland, Town of - Public Schools (SPR 20160795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/795 Mr. Paul Stein, Ed.D. Superintendent of Schools Town of Wayland Public Schools 41 Cochituate Road P.O. Box 408 Wayland, MA 01778 Dear Dr. Stein: I have received the petition of Linda L. Segal appealing the response of the Town of Wayland (Town) and the Town Public Schools (School) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Segal requested copies of invoices for legal expenses charged to the School in the FY15 and FY16 Town budgets from May 1, 2015 related to a particular incident. Previous appeals This request was the subject of previous appeals. See SPR16/314 Determination of the Supervisor of Records (May 24, 2016); SPR16/459 Determinations ofthe Supervisor of Records (July 14, 2016; September 2, 2016). In my July 14 determination I found the School and Town failed to rebut the presumption that the responsive portions of the legal invoices are public records. Attorney Mark J. Lanza responded on behalf of the School and Town in a letter dated August 1, 2016. In order to facilitate my review of this matter, I ordered the School and Town to provide this office with an unredacted copy of the responsive records for in camera review. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L. c. 66, § 1. The School and Town provided unredacted copies of the responsive records and I would like to thank them for their cooperation. In its August 1 response, Attorney Lanza indicates that with respect to invoices for the School, "[t]he detail portions of the invoices on this subject do, in fact, relate to private communications between members of the School Committee, Mr. Stein and other School OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Dr. Paul Stein SPR16/795 Page2 October 18,2016 Department administrators and me." Attorney Lanza further states "[t]he communications relate to legal advice provided by me which was sought by School officials. They have not waived the attorney-client privilege as to these communications. Thus, they cannot be disclosed." With respect to the Town's invoices, Attorney Lanza explains the relevant information was "not summarized by the general title of the matter, the dates of the legal services performed and the money charged for the services, including out-of-pocket expenses." 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 theburden 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. I d. at 1001. As in Hampton, the School and Town's response fails to explain with specificity why the attorney-client privilege applies to withhold the entirety of the responsive invoices. Further, in a letter dated August 7, 2016, Ms. Segal reiterated that she is "seeking access to town counsel billing invoices that itemize the subject matter, time spent and legal charges." Upon review of the materials submitted in camera, I find the Town and School have not established how these portions ofthe responsive records may be withheld under the attorney client privilege: See Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252, 270 (D.D.C. 2004) (explaining an in camera review is no substitute for the Government's obligation to provide detailed justifications).

Dr. Paul Stein SPR16/795 Page 3 October 18,2016 Fee estimate Based on the School and Town's August I letter, it appears Assistant Town Administrator John Senchyshyn provided Ms. Segal a fee estimate for the provision of redacted responsive records on July 9, 2016. In this fee estimate Mr. Senchyshyn explains "[t]o redact 8 complete invoices, I estimate approximately 4 hours of work" or "approximately 45 minutes of work to redacted the pages" in which the relevant individual is identified. Mr. Senchyshyn indicates the hourly rate to redact the documents is $67.16 an hour. The School and Town have not explained whether the hourly rate of $67.16 an hour is that ofthe lowest paid person capable of performing the task. See 950 C.M.R. 32.06(1)(c). Further, for the reasons discussed above, I find the School and Town have not justified why it may assess a fee to redact responsive information within the records, i.e. the subject matter, time spent and legal charges related to the incident in question. I understand an attorney on my staff contacted Attorney Lanza about this appeal. Order Accordingly, the School and 'Town areherebyorderedtcYprovideMs;Segalwitha ·· ··· ····· - response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Ms. Linda Segal Mr. Mark Lanza, Esq. Ms. Nan Balmer, Town Administrator