Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20181863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 11, 2018 SPRlS/1863 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, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan sent an email on November 12, 2018 stating that he "does not believe the claim of attorney client privilege is valid" and that "the custodian of records has not proven the existence of the attorney-client relationship" for records he requested. On November 27, 2018 the School provided Mr. Sullivan with a response. On November 27, 2018, Mr. Sullivan appealed the School's response to this office. 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, § lO(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

I'v1s. N"ancyPiasecki SPR18/1863 Page2 December 11, 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 I'v1gmt., 449 I'v1ass. 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 I'v1ass. 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 I'v1ass. 293, 306 (2009). Appeal For the attorney-client privilege to apply, a records custodian 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 I'v1ass. 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." Id. 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). In the School's November 2ih response to I'v1r. Sullivan, the School cited the attorney client privilege for the withholding of notes related to the conversation between the School's attorney and a School employee. The School stated in the response that "[t]he records requested by you are communications between one of the Framingham Public School's attorneys and an employee of Framingham. As such they are subject to attorney-client privilege. Communications within the attorney-client privilege are exempt from the definition of 'public records' and therefore are protected from public disclosure." The School confirmed that the record was related to an employee seeking legal advice. In the November 2ih response, the School provided a detailed description of the record and included the date of the communication, the names of the attorney and School employee, the substance of the record, and grounds upon which the attorney client privilege is being claimed. See G. L. c. 66, § lOA(a). The School also explains that the privilege has not been waived. As a result, I find the School has met its burden to withhold the records at issue under the attorney client privilege.

Ms. Nancy Piasecki SPRlS/1863 Page 3 December 11, 2018 Conclusion Whereas the School established that the record at issue involved privileged communications, I find the School has met its burden to withhold the information under the attorney-client privilege. Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Sullivan