Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20190220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 7, 2018 SPR19/220 Nancy Piasecki Executive Director of the Office of the Superintendent Framingham Public Schools 73 Mt. Wayte Ave., Suite 5 Framingham, MA O1 7 02 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 January 17, 2019 requesting clarity on a response provided by the School concerning "any current legal matters [he's] involved with the city of Framingham." On January 28, 2019 the School provided Mr. Sullivan with a response. On January 31, 2019, Mr. Sullivan appealed the School's response to this office stating the "school district has not established the existence of attorney client privilege with the city of Framingham on this matter. Additionally, the district was ordered to clarify whether communications were received during the client's search for legal advice. The response referred to an ongoing legal matter between the city." , 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). 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 SPR19/220 Page2 February 7, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). 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 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). On January 3, 2019 I issued a determination on this matter concerning the attorney-client privilege claim. See SPRl 8/1863. The School provided Mr. Sullivan a detailed description of the communication redacted pursuant to the attorney-client privilege. The School also included the date of the communication; the names of the attorney and School employee; the substance of the records; and grounds upon which the attorney-client privilege is being claimed. See G. L. c. 66, § lOA(a). The School established that the redacted material was privileged communications from an attorney to a client seeking legal advice and the privilege had not been waived. I found the School met its burden to redact the information within the emails under the attorney-client privilege. After another careful and thorough review, I respectfully decline to reverse my findings regarding the School's citing of attorney-client privilege.

Ms. Nancy Piasecki SPR19/220 Page 3 February 7, 2018 Mr. Sullivan also appealed to this office concerning the School clarifying the ongoing legal matter. The School states in its January 28, 2019 response to Mr. Sullivan that the ongoing legal issue was to "[r]eview and respond to question from Paul Spear regarding Open Meeting Law Complaint." The School explains that "[t]he subject matter of the record at issue has been previously disclosed to Mr. Sullivan on multiple occasions." Whereas the School provided evidence that establishes an ongoing legal matter, I find the School has met its burden to redact the information under the attorney-client privilege. Conclusion Based on the School's response, I find the School has met its burden in responding to Mr. Sullivan's appeal request. If Mr. Sullivan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. G. L. c. 66, § lOA. Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Sullivan