Christine McCue Potts v. Medfield Public Schools (SPR 20191203)

~. I \ . ;' "% •""' The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor of Records July 1, 2019 SPR19/1203 Jeffrey J. Marsden, Ed.D Superintendent Medfield Public Schools 459 Main Street, Third Floor Medfield, MA 02052 Dear Superintendent Marsden: I have received the petition of Christine McCue 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, Ms. McCue requested certain executive session minutes and other documents. The School provided a response on May 8, 2019. Ms. McCue appealed the May 81 " response to this office on June 14, 2019 concerning attorney-client privilege. 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 J. Marsden, Ed.D SPR19/1203 Page2 July 1, 2019 Attomey-clie11t privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence ofan 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). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to suppo1t their claims of privilege." Suffolk Constr. Co., 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 attomey client privilege is being claimed." G. L. c. 66, § lOA(a). The School on June 21, 2019 provided a supplemental response to this office and Ms. McCue. The School states "Ms. McCue alleges that the May 8 letter failed to provide any information on the grounds upon which the attorney-client privileged was asserted. That allegation is unquestionably false. The entire second paragraph in the Committee's May 8 letter lays out in detail exactly what Ms. McCue claims does not exist." The School explained that the "emails reference explicit communications and advice given by Mr. Waugh to Mr. Morrison after Mr. Morrison had requested that legal counsel advise the Committee on the terms of the contract extension." The School also attached in the May S"' response provided to Ms. McCue on which included a privilege log containing the authors, recipients, dates, and substance of the withheld records as well as the grounds for withholding or redacting. Conclusion In light of the School's June 21'1 supplemental response and attached May 8111 privilege log, I find the School has met its burden to withhold the information under the attorney-client privilege Sincerely, ~t~ Supervisor of Records cc: Christine McCue