George P. King, Jr. v. Nashoba Regional School District (SPR 20182030)

·~ .. The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 31, 2018 SPR18/2030 Patricia Marone Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Ms. Marone: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Regional School District (District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 26, 2018, Mr. King requested 7 categories of records. This appeal pertains to categories 6 and 7, requesting "any written communication and related documents" to and from "any attorney or staff member at Murphy, Hesse, Toomey and Lehane to" certain named individuals "that makes any reference, seeks any advice, offers any opinion or in any other way dicusses[,] considers, mentions or references this issue regarding the 'loans and leases', expressly or by inference, as reported in the so called 'forensic audit', dated between June 1, 2016 and March 20, 2017." The District responded on December 10, 2018 by asserting the common law attorney-client privilege to withhold responsive records and providing a fee estimate. Unsatisfied with the District's response, Mr. King petitioned this office and this appeal, SPRl 8/2030, was opened as a result. 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 onfy cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Patricia Marone SPR18/2030 Page2 December 31, 2018 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. The District's December 10th response In its December 1 oth response, the District indicates "[t]he communications sought in category No[ s]. 6 [a nd 7] are, on their face, protected by the attorney-client privilege. The [District] hereby asserts that privilege." The District cites Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007), to support its position. Common law 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. 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). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. In addition, 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 his petition for appeal, Mr. King claims the privilege does not apply to the requested records because it has been waived. In its response, the District states that it" ... will need its attorneys to segregate each communication to determine: 1) if the attorney-client privilege applies; and 2) whether the privilege has been waived." Consequently, the District provides an estimate for fees associated with this review. Fee estimate - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10( d)(i).

Patricia Marone SPR18/2030 Page 3 December 31, 2018 Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § lO(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10( d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). Fees for search time In its fee estimate, the District indicates that it would charge " ... a prorated fee of $25 per hour for search time associated with all requests for computerized public records." The District explains that after engaging its IT professional to perform an initial search for communications from one of the identified individuals, the first two hours of search revealed approximately 400 results. The District further indicates that "Ms. Clenchy has estimated that it will take her approximately three (3) hours to search through each of those communications to determine if they are responsive to" categories 6 and 7. The District explains that "Ms. Clenchy's efforts are necessary because although a communication may have been sent by Ms. Clenchy and contained the search term (i.e. forensic, audit, loan or lease), the communication may not be responsive to category[ies] [six and seven] as it may pertain to an umelated loan, lease, or audit." The District states that aside from a certain named individual, it does not believe that any other School Committee members, sent or received communications from Murphy, Hesse, Toomey & Lehane, LLP that are responsive to categories 6 and 7. Consequently, the District assesses a fee of $750 based on 30 hours of search time at $25 per hour. The District also indicates that because the population of the three towns in the District combined is less than 20,000, it will charge a fee for the first 2 hours. Based on the District's response, it remains unclear why the indicated amount of time is necessary to complete the search. As such, I find the District has not explained with specificity why the estimated amount of time is required to produce responsive records. Specifically, it is uncertain why the District requires a total of 30 hours to search for responsive records. For the reason discussed above, I find the District must revise its fee estimate or provide further explanation of how this fee was assessed in a manner consistent with G. L. c. 66, § lO(d).

Patricia Marone SPR18/2030 Page 4 December 31, 2018 Fees for segregation and/or redaction time A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10( d); see also 950 C.M.R. 32.06(4). The District previously submitted a petition related to the ability to assess fees for time spent segregating and/or redacting responsive records. See SPRl 8/1987 Determination of the Supervisor of Records (December 17, 2018). Please refer to the determination in SPRl 8/1987 for analysis of this issue. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the District is ordered to provide Mr. King with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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, ~ff/I~. Rebecca S. Murray Supervisor of Records cc: George P. King, Jr.