Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20181505)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2018 SPRlS/1505 Nancy Piasecki Executive Director of the Office of the Superintendent Framingham Public Schools 73 Mt. Wayte Ave., Suite 5 Framingham, MA 01702 Dear Ms. Piasecki: I have received the petition of Paul Sullivan appealing the response of the Framingham Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan sent an email on September 20, 2018 requesting invoices from the School. On October 1, 2018 the School provided Mr. Sullivan with a response. On October 15, 2018, Mr. Sullivan appealed the School's response to this office stating he did "not believe the claim of attorney client privilege is valid, the custodian of records has not proven the existence of the attorney-client relationship." 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, § lOA(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, § lO(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. G. L. c. 66, § 1O (b )(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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

Ms. Nancy Piasecki SPR18/1505 Page2 October 29, 2018 Attorney-client privilege 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 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). Disclosing attorney client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a). The School must establish the existence of an attorney client relationship and clarify whether 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, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9 (2007). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 449 Mass, at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney client privilege is being claimed." G. L. c. 66, § lOA(a). Consequently, the School must produce an index to support the claim of the attorney-client priviledge. Open Meeting Law Mr. Sullivan's appeal raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the content of the executive session minutes. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue.

Ms. Nancy Piasecki SPRlS/1505 Page 3 October 29, 2018 Conclusion Accordingly, the School is ordered to provide a response consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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.rna.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Paul Sullivan