George P. King, Jr. v. Nashoba Regional School District (SPR 20190868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 14, 2019 SPR19/868 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, § 1O A; 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." Previous appeals The requested records were the subject of previous appeals. See SPR18/2030 Determination of the Supervisor of Records (December 31, 2018); SPRl 9/0231 Determination of the Supervisor of Records (February 15, 2019); SPR19/604 Determination of the Supervisor of Records (April 5, 2019). I previously found that the District had met its burden to charge $75 for the time (1 hour) it took its attorney to review certain responsive records. The District provided Mr. King a response on April 15, 2019 explaining that it is withholding documents under the attorney-client privilege. Mr. King appealed and SPR19/868 was opened as result. It should be noted that in my April 5th determination I found the District cannot charge a fee for Steps 1, 2, and 3 of its fee estimate to produce other responsive records. This office is currently reviewing the District's request for reconsideration of this portion of the April 5th determination. 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 SPR19/868 Page2 May 14, 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, § 1 O(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. Current appeal In his appeal petition Mr. King indicates that he paid the District $75.00 for the time to review certain emails, but received a response from the District on April 15th indicating it is withholding these records under the attorney-client privilege. In its April 15th response the District asserts "[t]o be clear, the documents identified on page four (4) of my letter dated January 15, 2019, are protected by the attorney-client privilege and will not be produced by the Nashoba Regional School District (District)." 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). 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).

Patricia Marone SPR19/868 Page 3 May 14, 2019 In its January 15th response the District provided a privilege log that contains the names of the authors and recipients, the dates of the emails, and a description of the subject of the emails. The District further notes" ... the grounds upon which the attorney-client privilege is being claimed is that each of the foregoing correspondence consisted of confidential communications between the School District and their legal counsel (Murphy, Hesse, Toomey & Lehane, LLP) undertaken for the purpose of obtaining legal advice regarding the subjects identified in the log. Despite your insistence to the contrary, the School District has not waived the attorney-client privilege." In his current appeal petition Mr. King indicates "[t]hese six records, and potentially many more that have not yet been disclosed, relate directly to the subject of lease financing as reported in the January 2017 forensic audit. As part of the public presentation of this audit, Nashoba publicly produced and placed on their website a nine-page legal opinion offering advice and counsel on this subject. I have once again attached that memo. Further they made their attorney publicly available to make a presentation and answer public questions on the issue at two public meetings held on January 4, 2017 and January 18, 2017." Mr. King further claims that "[t]he fact that legal advice was released to a third party is a clear and unquestionable waiver of the attorney client privilege." I find that the District must clarify whether the privilege as to the communications at issue has been waived. In particular, it must clarify whether these records were released to a third party and address Mr. King's assertion that "[t]he fact that legal advice was released to a third party is a clear and unquestionable waiver of the attorney client privilege." See Suffolk Constr. Co., 449 Mass. at 450 n.9. 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, Rebecca S. Murray Supervisor of Records cc: George P. King, Jr. Kevin Freytag, Esq.