William M. Welch v. Longmeadow, Town of - Public Schools (SPR 20190896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 16, 2019 SPR19/896 Dianne Georgantas Town of Longmeadow Public Schools 535 Bliss Road Longmeadow, MA O1 106 Dear Ms. Georgantas: I have received the petition of William M. Welch appealing the response of the Town of Longmeadow- School Committee (Committee) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Mr. Welch requested a copy of: "any and all documents, whether in handwritten, electronic, or any other form, relating to VDH's investigation of the allegations contained within the November 30th complaint and subsequent response to that complaint on behalf of the [Committee], Said documents include, but are not fimited to, the following: 1. Any and all emails from or to any [Committee] member, including any email from or to the personal email accounts of any [Committee] member; 2. Any and all text messages from or to any [Committee] member, including any text messages from or to the personal devices of any [Committee] member; 3. Any and all handwritten, electronic, or any other recordings of any conversations, discussion, interviews, conferences, or any other communications with any [Committee] member; 4. Any and all research conducted in relation to the November 30th OML complaint; 5. Any and all documents received from any [Committee] member, including, but not limited to an "outline of events," relating to the October 30th meeting or as part of the investigation of the November 30th OML complaint; 6. Any and all documents relating to any reviews of the December 19th response; 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

Dianne Georgantas SPR19/896 Page2 May 16, 2019 7. Any and all drafts of the December 19th letter; and 8. Any and all drafts of agendas and motions relating to the November 30th complaint. In a February 6, 2019 response, the Committee provided documents responsive to Mr. Welch's request, and withheld some documents pursuant to the common law attorney-client privilege and/or attorney work product. As a result of the Committee's intent to withhold some records under the attorney-client privilege and/or work product doctrine, Mr. Welch petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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, § IOA(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). lt 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, § IO(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 ... "); 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). Common law attorney-client privilege and/or work product doctrine The Committee has claimed that records were withheld 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).

Dianne Georgantas SPR19/896 Page 3 May 16, 2019 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 of Blee. 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 substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a). The Committee did not meet its burden of specificity in claiming the common law attorney-client privilege to withhold responsive communications under Suffolk and the requirements in the Public Records Law. See Suffolk, 449 Mass. at 450; see also G. L. c. 66, § lOA(a). The Committee's February 6th response also indicates that it may be withholding responsive records under the "work product doctrine;" however, the Committee did not provide any specificity to support this claim. It should be noted that the Supreme Judicial Court (SJC) opined on this issue in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ .. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption ( d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id.

Dianne Georgantas SPR19/896 Page 4 May 16, 2019 I find that the Committee has not established how the withheld records constitute work product that may be withheld as contemplated in DaRosa; in particular, it is unclear how the responsive records were prepared in anticipation of litigation or for trial. Burden ofs pecificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Committee did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Where possible, the Committee must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). The Committee did not identify the records, categories of records or portions of records in its possession that it has withheld from disclosure under the common law attorney-client privilege and/or work product doctrine. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Committee merely stated, "[p] lease be advised the Committee is withholding all documents responsive to your request that fall within attorney-client privilege or attorney work product." Therefore, the Committee must identify how many and what type ofrecord(s) it has in its possession that the Committee withheld. Conclusion Accordingly, the Committee is ordered to provide Mr. Welch with a response, 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: William M. Welch