(Anonymous) v. Wilmington, Town of - Public Schools (SPR 20190001)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 15, 2019 SPR19/001 Andrew J. Waugh, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive Quincy, MA 02169 Dear Attorney Waugh: I have received the petition of an unnamed requestor appealing the response of the Town of Wilmington Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, via email, the requestor sought a copy of executive session minutes from October 2016 through December 2016. On December 7, 2018, the School provided the requestor with executive session minutes for the October 3, 2016; October 19, 2016; October 26, 2016; November 1, 2016; December 7, 2016 and December 14, 2016 School Committee meetings. However, the School redacted certain information contained in the December 7th executive session minutes pursuant to the common law attorney-client privilege. As a result, the requestor petitioned the Supervisor of Records (Supervisor) and this appeal was opened. In the January 1, 2019 petition, the Requestor objects to the redaction of the December 7, 2016 executive session minutes, and that the October 3, 2016 executive session minutes do not reflect the full nature of the discussion and negotiations that occurred during the meeting. The School's December 7, 2016 email response Accompanying a December ih email by Jacquie Raffi, the School's Records Access ih Officer, the School provided copies of the executive session minutes. Ms. Raffi's December email states, "[t]he minutes for the executive session held December 7, 2016 have been partially redacted because that portion of those minutes contains correspondence which is attorney-client privileged." In a January 10, 2019 telephone discussion with a Public Records Division staff attorney, you explained that the minutes were redacted under the attorney-client privilege, and that a 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

Andrew Waugh, Esq. SPR19/001 Page 2 January 15, 2019 response would be provided to support withholding information within the content of the ih December executive session minutes under the attorney-client privilege. Common law attorney-client privilege The School's December 7, 2018 email response claims that the redactions of the executive session minutes were provided 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 ofElec. 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 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

Andrew Waugh, Esq. SPR19/001 Page 3 January 15, 2019 substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a) (emphasis added). ih I find that, with its December email response, the School did not meet its burden of specificity in claiming the common law attorney-client privilege to withhold information from the records under the requirements of the 3-part test in Suffolk and the Public Records Law under G. L. c. 66, § lOA(a). Open Meeting Law The issues brought forth in the Requestor' s appeal potentially invoke the Open Meeting Law (OML). Given that an interpretation of the OML 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. Conclusion Accordingly, the School is hereby ordered to provide the Requestor with a response that complies with Suffolk and G. L. c. 66, § lOA(a) 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: Jacquie E. Raffi, Records Access Officer Anonymous Requestor (via email)