Linda L. Segal v. Wayland, Town of (SPR 20170174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 21, 2017 SPR17/174 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 § IOA; see also 950 C.M.R. 32.08(1). Specifically, in a request dated January 23, 2017, Ms. Segal requested "[a ]ll invoices showing all legal fees and other related legal expenses charged to the [S]chool and [T]own sides of the FY15 and FYI 6 Town of Wayland budgets from May 1, 2015 through April 1, 2016 related to" a specific incident. In separate responses dated February 3, 2017, the Town and School each provided responsive records containing redactions. 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, § IOA(d); 950 C.M.R. 32.03(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, § IO(b)(iv); 950 C.M.R. 32.06(3); 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). 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Paul Stein, Ed.D. SPRl 7/174 Page 2 February 2·1, 2017 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. The Town and School's February 3rd responses In the February 3rd responses the Town and School each provided Ms. Segal redacted records at no cost. The redactions contained in the records provided to Ms. Segal are within the "Services" description column; information pertaining to dates, hours, and dollar amounts was provided. The Town's response In its February 3rd cover letter John Senchyshyn, on behalf of the Town, indicates "the Town has not redacted any information or records responsive to your request. All responsive documents and information contained therein have been provided" ( emphasis in original). Mr. Senchyshyn further explains "[t]he only information that has not been provided is information contained in records that are not responsive to your request and/or information that is not responsive which is protected by the attorney-client privilege since they contain entries of former Town Counsel Lanza for the purpose of obtaining confidential legal advice on separate topics, and the privilege has not been waived" ( emphasis in original). Mr. Senchyshyn continues by stating "the redacted portions of the invoices are, at the outset, not responsive to your [r]equest" and the "redacted portions of Attorney Lanza's invoices, which contain confidential statements of counsel provided to the Town for purposes of obtaining legal advice and strategy from Attorney Lanza, for which the attorney-client privilege has not been waived on entirely different matters do reveal confidential communications for the purpose of obtaining legal advice for the Town by town officials and, therefore are privileged attorney client communications" ( emphasis in original). Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those responsive records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Whereas the Town explained in its February 3rd letter that it has not withheld any responsive information, I will consider this appeal closed with respect to the Town.

Paul Stein, Ed.D. SPRl 7/174 Page 3 February 21, 2017 The School's response In its February 3rd cover letter the School explains "information which is protected by the attorney-client privilege has been redacted in the enclosed documents." You indicate "[t]he redacted portions of the invoices contain confidential statements identifying the specific subjects of privileged legal advice given to the School Department and/or information that must remain confidential under other statutes, such as student records. This information is therefore privileged or otherwise not subject to production as a public record pursuant to M.G.L. Chapter 4, Section 7(26)(a)." You also cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449- 50 (2007) and DaRosa v. New Bedford, 471 Mass. 446,453 (2015) in support of this position. 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, 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). Based on its February 3rd letter, it is unclear whether any redactions within the records provided pertain to responsive information, specifically, the incident referred to in Ms. Segal's request. The School must clarify this matter. See G. L. c. 66, §§ 6A(d), lO(a)(ii). If certain redactions pertain to responsive information, the School must explain with specificity how this information may be withheld. See G. L. c. 66, § 1O (b )(iv). I understand an attorney on my staff contacted you and School Counsel Kevin F. Bresnahan, Esq. about this matter. Attorney Bresnahan indicated the School would provide a supplemental response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the School provide Ms. Segal with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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.

Paul Stein, Ed.D. SPRl 7/174 Page 4 February 21, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Linda Segal Kevin Bresnahan, Esq. Carolyn Murray, Esq.