Gerard F. Mackin, Jr. v. Weymouth, Town of - Public Schools (SPR 20181755)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 5, 2018 SPRlS/1755 Jennifer Curtis-Whipple, Ed.D. Superintendent Town of Weymouth Public Schools 111 Middle Street Weymouth, MA 02189 Dear Dr. Curtis-Whipple: I have received the petition of Attorney Gerard Mackin, Jr. appealing the response of the Town of Weymouth Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Attorney Mackin made four separate records requests between October 12, 2018 and October 13, 2018. The School provided Attorney Mackin with responses on October 23, 2018 regarding all four requests which Attorney Mackin appealed. Prior appeal The four requests for responsive records were the subject of a prior appeal. See SPR18/1590 Determination of the Supervisor of Records (Supervisor) (November 5, 2018). In my November 5th determination, I found that the School did not provide the specificity necessary in claiming that the responsive records could be withheld under the first clause of Exemption ( c) as personnel. In addition, I found that the School did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption ( c ), and advised the School that it should provide any segregated portions of the records where necessary. Current appeal In his November 20, 2018 petition, Attorney Mackin indicates that he is appealing the School's supplemental response pertaining to his October 12, 2018 request sent to the School via email at 4:52 PM email, specifically: "(l)Every document, whether paper or electronic, referring or relating to the denial of [ an identified person's] access to his email account as [ an employee] by changing his password or otherwise; 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

Dr. Jennifer Curtis-Whipple SPR18/1755 Page2 December 5, 2018 (2)Every document whether paper or electronic directing any employee of the Weymouth School Dept. to offer any explanation to any person for changing access to [a n identified person's]; (3)Every document whether paper or electronic constituting communication among members of the school committee, employees of the Weymouth school dept. or other employees of the town or Weymouth regarding [ an identified person's] email and access by him thereto. This request covers the period from 7-1-2018 to the date [of the request]." In its November 20, 2018 supplemental response, the School informed Attorney Mackin that the records responsive to his request on October Iih at 4:52, referenced above, will be searched for, reviewed for attorney-client privileged communications, and either redacted or withheld under the privilege. In his November 20th petition, Attorney Mackin states, "I concede that I am not entitled to any document constituting a communication between an atty and a client. I further that documents prepared by an atty in connection with litigation are not to be produced." However, Attorney Mackin asks that the School identify the dates in which the attorney-client privilege arose pertaining to his 4:52 PM October lih request. Attorney Mackin asks this office to order the School to produce documents relating to the period before an attorney was involved in the email issue. Status of the requestor; reason for the request It is important for Attorney Mackin to note that the Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Mackin's status and the status of the identified person will play no role in a determination as to whether the records should be disclosed to the public. 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, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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

Dr. Jennifer Curtis-Whipple SPR18/1755 Page 3 December 5, 2018 burden of establishing the applicability of an exemption). Common law attorney-client privilege In its November 20, 2018 supplemental response, the School has claimed that Attorney Mackin's 4:52 PM October lih request is likely to contain records that may be withheld or redacted under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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). Pursuant to the Public Records Law, in assessing whether a records custodian has

Dr. Jennifer Curtis-Whipple SPR18/1755 Page 4 December 5, 2018 properly withheld records based on the claim of attorney-client privilege the Supervisor "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) (emphasis added). Attorney Mackin has requested that the School provide a date on which the privilege attached to the responsive records. In his October lih request, he asked for records from July 1, 2018 to the date of his request (October 12, 2018); however, it is unclear whether the School believes that it has attorney-client privileged communications for the entire time period. I find that the School has not claimed the attorney-client privilege with the specificity required by both Suffolk and the Public Records Law. See Suffolk Constr. Co., 449 Mass. 450, fn 9; see also G. L. c. 66, § lOA(a). I find that the School must provide a privilege log or index of the records that it is withholding under the attorney-client privilege. Burden of specificity; duty to segregate records Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Order Accordingly, the School is ordered to provide Attorney Mackin with a response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Gerard F. Mackin, Jr. Joseph S. Callanan, Esq., Town Solicitor