George P. King, Jr. v. Nashoba Regional School District (SPR 20191189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2019 SPR19/1189 Patricia Marone Nashoba Regional School District 50 Mechanic Street Bolton, MA O1 7 40 Dear Ms. Marone: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Regional School District (District/School District) to a request for public records. G. L. c. 66, § lOA; 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); SPR19/868 Determination of the Supervisor of Records (May 14, 2019). In my May 14th determination I ordered the District to provide Mr. King with a response to the request, proviaed m a manner consistent with the order, the Public Records Law, and its Regulations. The District responded on May 29, 2019. Mr. King appealed and SPR19/1189 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 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 SPR19/1189 Page 2 June 25, 2019 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. Current appeal The District provided Mr. King a response on April 15, 2019 explaining that it is withholding documents under the attorney-client privilege. In my May 14th determination I found the District must clarify whether the privilege as to the communications at issue has been waived. In particular, I found 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." 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). G. L. c. 66, § 1O A( a) provides that where a record has been withheld on the basis of a claim of the 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. In a 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 noted" ... 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)

Patricia Marone SPR19/1189 Page 3 June 25, 2019 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 a prior 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 ["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 claimed that "[t]he fact that legal advice was released to a third party is a clear and unquestionable waiver of the attorney[-]client privilege." In its May 29th response Attorney Freytag, on behalf of the District, indicates" ... the School District has not released [the] records at issue (the 'Privileged Records') ... to any third party." He notes that" ... Privileged Records 5 and 6 took place after the Legal Opinion was released. It is obvious that the release of the Legal Opinion could not therefore have acted as a waiver of the attorney-client privilege for communications that took place after it was released." With respect to the remaining records at issue, Attorney Freytag asserts "[a]lthough privileged Records 1, 4, and 5 and the Legal Opinion concern, in part, the forensic audit or an agreement for the lease of equipment, the Legal Opinion does not disclose the content of the communication between the School District and Counsel contained in Privilege Records 1, 4, and 5. Moreover, the Legal Opinion does not disclose any request for legal advice made by the School District or any legal advice given by Counsel to the School District regarding Mr. King's request for indemnity, which was the subject of Privileged Records 2 and 3." The District further notes " ... the Legal Opinion does not disclose any request for legal advice made by the School District or any legal advice given by Counsel to the School District regarding Mr. King's separation agreement, which was the subject of Privileged Record 6." Attorney Freyag asserts "[f]or all of these reasons the School District maintains its position that it has not waived the attorney-client privilege as it relates to the Privileged Records." In his current appeal petition Mr. King asserts, in part, that releasing the Legal Opinion to :hcfpublic " ... watves the attorney-client privilege on the issue and there is no doubt." Based on his petition, it appears the only issue in this appeal is whether the District waived the attorney client privilege for the records at issue. With respect to the issue of waiver, the District's May 29th response explains how certain records were made after the date of the Legal Opinion and others involve different subject matters than those discussed in the Legal Opinion. This response further indicates that the Legal Opinion does not disclose the content of communication between the School District and Counsel, nor disclose any request for legal advice made by the School District or any legal advice given by Counsel to the School District contained within the withheld records at issue. I

Patricia Marone SPR19/1189 Page 4 June 25, 2019 find that in light of the District's May 29th explanation, the School has met its burden to show how the privilege for the records at issue, which are different records than the Legal Opinion, has not been waived. Accordingly, I will consider this appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: George P. King, Jr. Kevin Freytag, Esq.