Christine McCue Potts v. Medfield Public Schools (SPR 20190767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 24, 2019 SPR19/767 Jeffrey Marsden, Ed. D Superintendent Medfield Public Schools 459 Main Street, 3rd Floor Medfield, MA 02052 Dear Dr. Marsden: I have received the petition of Christine Mc Cue appealing the response of the Medfield Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 12, 2019, Ms. McCue requested the following records: "1. Copies of Medfield School Committee Executive Session minutes for the list of dates in the attached document. 2. Copies of all written communications since April 1, 2018 between Superintendent Marsden and/or any member of his staff, and/or any member of Medfield School Committee, related to his contract, including, but not limited to, re-opening negotiations. 3. Copies of all electronic communication exchanged between Medfield School Committee members ... (including but not limited to message sent and received via scchair@email.medfield.net) between Dec. 1, 2018 and March 11, 2019, excluding meeting scheduling messages, and especially including any communication related to the superintendent contract. 4. A copy of the e-mail (in its entirety) that School Committee Member ... received and read aloud at the March 11, 2019 public meeting that contained a copy of the e-mail distributed by me. 5. Copies of any written communication (electronic and/or hard copy) between Superintendent Marsden, and/all principals, teachers, staff and/or other administrators/leadership team members, school committee members (former and present), and/or former Police Chief ... , related to:" 1. "Dr. Marsden's presence at a 1st grade teacher/common planning meeting in December 2017 or January 2018; 11. "My presence in the high school in the late afternoon of January 17, 2018;" 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

Jeffrey Marsden, Ed.D SPR19/767 Page 2 April 24, 2019 111. Any/all communication about me (including reference to Superintendent Marsden's letter to me) as it relates to the January 29, 2018 School Committee Meeting/Budget Hearing, including but not limited to messages exchanged with [an identified individual], and arrangements for or with the Resource Officer who was present at the meeting." The School provided an initial response on March 26, 2019, which included certain responsive records. The School requested additional ten business days to complete Ms. McCue's request. The School provided a second response on April 9, 2019; this response also included the provision of certain responsive records. Unsatisfied with the School's responses, Ms. McCue petitioned this office and this appeal, SPR19/767, was opened as a result. While this appeal was pending, the School provided a supplemental response on April 22, 2019. 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. 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 March 26th and April </11 responses In its March 26th response, the School provided certain responsive records, executive session minutes, and indicated that there were no executive session minutes on specific dates. The School requested additional ten business days to complete the request. In its April 9, 2019 response, the School provided another set of documents, emails regarding the superintendent's contract extension. The School indicated that it did not disclose certain emails between two identified individuals because the emails fall within the attorney client privilege. The School then provided a fee estimate for the subsequent provision of the remaining records.

Jeffrey Marsden, Ed.D SPR19/767 Page 3 April24, 2019 The School's April 2211 supplemental response d In its April 22, 2019 supplemental response, the School responded to certain claims made by Ms. McCue in her appeal petition. With respect to its attorney-client privilege claim, the School stated that "[i]t is well established that confidential communications between governmental entities and their legal counsel undertaken for the purposes of obtained legal advice or assistance are protected and need not be disclosed in response to a Public Records Request. Suffolk Constr. Co., Inc. v. Division of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007)." The School claimed that its April 9th response "properly advised [Ms. McCue] that it was withholding certain emails between [an identified] Committee Member and [an identified] Attorney based on the attorney-client privilege. Therefore, the Committee did not violate the Public Records Law as a result of that action." With respect to records previously withheld from disclosure, the School provided an email record in its supplemental response. The School also indicated that there are no text messages responsive to Ms. McCue's request. The School claimed that ifthere are additional responsive records, Ms. McCue must pay the assessed fee in order for the School to make that determination. 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). Also, 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. 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).

Jeffrey Marsden, Ed.D SPR19/767 Page 4 April 24, 2019 Based on its responses, although the School claims that "[i]t is well established that confidential communications between governmental entities and their legal counsel undertaken for the purposes of obtained legal advice or assistance are protected and need not be disclosed in response to a Public Records Request[,]" I find the School has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the School did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. Also, the School has not provided a privilege log including the names of the author and recipient, the date, and the substance of each record. Consequently, I find the School has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold certain email records from disclosure. Fee estimates - 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, § IO(d)(i). 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, § 10( 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, § lO(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 C.M.R. 32.06(4). In regards to its fee estimate, the School indicated that it has " ... srent over two hours on this and the last email of information [Ms. McCue] received on March 261 . As you know, a municipality under 20,000 residents can charge a fee from the start .... Given the scope of the entire request, and now having to involve the technology department to retrieve files/emails, [the School] will likely charge [Ms. McCue] $25.00 an hour for employee time and 0.05 a copy for any documents." The School indicated that it" ... anticipate[s] it will take another 3 to 4 hours to search for, collect, segregate, redact and/or examine the records requested." In its April 22nd supplemental response, the School claimed that it " ... provided a reasonably limited estimation of time (3-4 hours) for a reasonably short list of anticipated tasks (5). An estimation further breaking down those figures would not shed much light on the extent

Jeffrey Marsden, Ed.D SPR19/767 Page 5 April 24, 2019 to which the estimation would be accurate for the cited tasks .... " The School further stated that because Medfield is a municipality with a population of 20,000 persons or fewer it" ... was not required to get approval to charge [Ms. McCue] for time spent segregating or redacting records because it is expressly authorized to assess such charges. Furthermore, when [Ms. McCue] filed this appeal, the RAO did not have sufficient time to determine whether segregation and redaction was required by law." Based on the School's April 9th fee estimate and its April 22nd supplemental response, it remains unclear why the School requires 3 to 4 hours to continue with Ms. McCue's request. Whereas the School has not met its burden of specificity in assessing the number of hours and explaining why the estimated amount of time is required to produce the rest of the responsive records, the School must provide more detail regarding its fee estimate and indicate the amount of time allocated to search, collect, segregate, redact, and/or examine the records. Further, it appears the School intends to assess a fee to redact portions of the records, but it did not claim any exemptions in the Public Records Law to do so. Please be advised, 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). I am not aware that the School has submitted a petition under G. L. c. 66, § IO(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the School may not currently seek permission to assess fees for this March Ii 11 request through a petition under G. L. c. 66, § IO(d)(iv). See 950 C.M.R. 32.06(4)(g). As such, I find the School must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Employee time 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. See G. L. c. 66, § 10(d )(iii). Although the School claims it would likely charge Ms. McCue $25.00 an hour, it is unclear whether the School used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.07(2)(i). The School must clarify this matter. For the reasons discussed above, I find the School must provide Ms. McCue with a revised, good faith estimate for the cost of complying with her request consistent with the Public Records Law, its Regulations and this determination. I understand a Public Records Division staff attorney contacted your office about this appeal.

Jeffrey Marsden, Ed.D SPR19/767 Page 6 April 24, 2019 Conclusion Accordingly, the School is ordered to provide Ms. McCue 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: Christine McCue