Michael Levesque v. Roxbury Prep Charter School (SPR 20190438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2019 SPR19/438 Oliver Truog Public Records Officer Roxbury Prep Charter School 206 Magnolia Street Dorchester, MA 02121 Dear Mr. Truog: I have received the petition of Michael Levesque appealing the response of the Roxbury Prep Charter School (School/Roxbury Prep) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 4, 2019, Mr. Levesque requested the following categories of records: "l. Any agreement between Roxbury Prep and Upton and Partners, LLC. 2. Any agreement with Roxbury Prep Belgrade A venue, LLC. 3. Any agreement with Northwind Strategies 4. Any agreement with Uncommon Schools, or any subsidiary or entity controlled by Uncommon Schools regarding the siting of a high school at 3 61 Belgrade A venue, Roslindale, MA. 5. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Upton and Partners, LLC. 6. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Roxbury Prep Belgrade A venue, LLC. 7. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Northwind Strategies 8. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Uncommon Schools regarding the siting of a high school at 361 Belgrade A venue, Roslindale, MA. 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

Oliver Truog SPR19/0438 Page 2 March 6, 2019 9. Any emails between (meaning to, from, cc, bee or forwarded by) any representative, employee or agent of Roxbury Prep or Uncommon schools and the email address mrachelcs@gmail.com 10. Any emails between (meaning to, from, cc, bee or forwarded by) any representative, employee or agent of Roxbury Prep or Uncommon schools and the email address info@roxpreproslindale.org." The School provided a response on February 19, 2019. Unsatisfied with the School's response, Mr. levesque petitioned this office and this appeal, SPR19/0438, 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, § 1O (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. 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. The School's February 19th response In its February 19, 2019 response, the School states that it would provide records in its possession. However, the School states that it" ... is not able to provide copies ofrecords which are not in its possession or control, including communications to and from Uncommon Schools to which Roxbury Prep was not a party. Uncommon Schools and Roxbury Prep are independent entities and Roxbury Prep is unable to produce records in Uncommon Schools' exclusive possession." In addition to records in the possession of Uncommon Schools, the School also states that it would not produce records exempt from disclosure under the Public Records Law " ... including, but not limited to, the following categories of documents: 1. Internal communications relating to the development of policy positions by Roxbury Prep; 2. Proposals and bids to enter into any contract or agreement, until the time for the receipt of bids or proposals has expired; 3. Communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a

Oliver Truog SPR19/0438 Page 3 March 6, 2019 particular person or entity; 4. Appraisals of real property acquired or to be acquired; and 5. Records which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, or other infrastructure located within the Commonwealth of Massachusetts, the disclosure of which is likely to jeopardize public safety. Finally, Roxbury Prep will not produce any records protected by the attorney-client privilege or attorney work product doctrine." Further, the School states that because it "does not currently have staff available to locate, segregate, and copy the records identified in [Mr. Levesque's] February 4, 2019 letter[,] [it] will need to hire a contractor in order to comply with [his] records request. Additionally, Roxbury Prep must retain an attorney to assess whether any of the requested records are subject to a claim of privilege or otherwise exempt from disclosure under Massachusetts law. Roxbury Prep therefore intends to seek approval from the Supervisor of Public Records of the Office of the Secretary of the Commonwealth to assess a fee of more than $25 per hour in order to retain a qualified attorney for these purposes." The School states that "[o]nce [it] receives approval from the Supervisor of Public Records to assess an hourly fee in excess of $25 per hour, Roxbury Prep will prepare an estimated budget setting forth its request for advance payment in order to process [Mr. Levesque's] requests." Burden ofs pecificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School did not identify the records, categories of records or portions of records in its possession that are responsive to Mr. Levesque's request. See G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c )( 4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Therefore, the School must identify what records it has in its possession, custody or control that are responsive to Mr. Levesque's request. Also, although the School indicates that certain records are exempt from disclosure, it is unclear which exemptions under the Public Records Law the School is claiming to withhold such records or how the exemptions apply to withhold the requested records. The School must provide a detailed response to specifically explain how the exemptions apply to withhold the requested records in compliance with the Public Records Law.

Oliver Truog SPR19/0438 Page 4 March 6, 2019 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. Attorney-client privilege 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). Therefore, the School must provide further information regarding its attorney-client privilege claim in compliance with the Public Records Law. Records access officer; duties In the School's response, it states that because it "does not currently have staff available to locate, segregate, and copy the records identified in [Mr. Levesque's] February 4, 2019 letter[,] [it] will need to hire a contractor in order to comply with [his] records request." Please note that under the updated Public Records Law, each municipal or governmental entity or agency shall have a designated "records custodian" who shall coordinate the custodian's response to requests for access to public records. See 950 C.M.R. 32.04 (1)(2). Agency relationship In its response, the School states that it" ... is not able to provide copies of records which are not in its possession or control, including communications to and from Uncommon Schools to which Roxbury Prep was not a party. Uncommon Schools and Roxbury Prep are independent entities and Roxbury Prep is unable to produce records in Uncommon Schools' exclusive possession." In his appeal petition, Mr. Levesque also claims that "Uncommon Schools is Roxbury Prep's Charter Maintenance Organization." Mr. Levesque also claims that the School is " ... a subsidiary of Uncommon Schools." Please be advised that where a public entity contracts with a third party to fulfill its public

Oliver Truog SPR19/0438 Page 5 March 6, 2019 duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the School's response, it is unclear whether the School possesses records from Uncommon Schools. It is additionally uncertain whether an agency relationship exists between the School and Uncommon Schools and whether the School would be entitled to request or obtain the records requested by Mr. Levesque from Uncommon Schools. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). I find the School must provide additional information regarding this issue. Petitions seeking a waiver ofs tatutory limits to fees In its response, the School indicates that it " ... intends to seek approval from the Supervisor of Public Records ... to assess a fee of more than $25 per hour in order to retain a qualified attorney for these purposes." Please note, with respect to timeframes for submitting fee petitions, 950 C.M.R. 32.06(4 )(g) provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records." Upon review of the file, it appears the School received Mr. Levesque's request on February 4th. Whereas more than ten business days have passed after the receipt of the request, the School may no longer submit such a petition. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the School is ordered to provide Mr. Levesque with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Michael Levesque