Corey Spaulding v. Natick Public Schools (SPR 20191306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 15, 2019 SPR19/1306 Timothy Luff Assistant Superintendent Office of Student Services Natick Public Schools 12 East Central Street Natick, MA 01760 Dear Assistant Superintendent Luff: I have received the petition of Corey Spaulding appealing the response of the Nat ick Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on May 9, 2019, Ms. Spaulding requested" ... any and all communication, documents, co11'espondence, notes, records between [a n identified attorney] and/or anyone in his office and the Town of Natick employees/staff/volunteers in regards to The Spaulding Family: ... " The School responded on May 22, 2019, providing a responsive record and denying access to certain records pursuant to the attorney-client privilege. Unsatisfied with the response, Ms. Spaulding petitioned this office and this appeal, SPRl 9/1306, was opened as a result. While this appeal was pending, on July 9, 2019, the School provided this office with a supplemental response that was provided to Ms. Spaulding on May 23, 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, § 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. 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

Assistant Superintendent Timothy Luff SPR19/1306 Page 2 July 15, 2019 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. The School's May 2211 <1 response In its May 22, 2019 response, the School indicates that "[t]he only document we can provide regarding [the identified attorney] that may be responsive to your request is this signed affidavit of Peter Sanchioni that is attached here. Other than that there are 2 emails between our council [sic] that fall under client/attorney privilege that are being withheld at this time." The School's May 23rd response In its May 23, 2019 response, the School states that the 2 withheld emails were between " ... the school Committee's agent, Dr. Peter Sanchioni and School Committee attorney Andrew Waugh." The School explains that "[o]n two separate occasions, specifically, on November 14, 2017 (twice) Dr. Sanchioni and Attorney Waugh exchanged email correspondence concerning a pending legal case involving Attorney Meltzer's client and [Ms. Spaulding] in which the litigants had sought to draw in the Natick Public Schools. The emails reference explicit communications and advice given by Mr. Waugh to Dr. Sanchioni." Consequently, the School asserts that the email communications meet the standard for attorney-client privilege communications under Suffolk because, "l .[t]he communications were received by the Committee's agent, the superintendent, during the course of the Committee's search for legal advice from the Committee's attorney on a pending legal matter involving Mr. Meltzer's client and [Ms. Spaulding] in which the parties had sought to draw in the Natick Public Schools into the litigation; 2. [t]he communications were made to Dr. Sanchioni via email and were made in confidence; and 3. [t]he Committee has not waived its privilege with respect to the communications with its attorney." The School then provided a privilege log with respect to the 2 email records. 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 Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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). 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.

Assistant Superintendent Timothy Luff SPR19/1306 Page 3 July 15, 2019 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). In her appeal petition, Ms. Spaulding states "Attorney Meltzer is not an attorney for Natick -he represents my neighbors in City of Framingham who Natick School Committee have confirmed conspire with to obtain information to exclude [a n identified individual] from attending schools ... " In the School's July 9th email correspondence to this office, the School attached its supplemental response on May 23, 2019 to Ms. Spaulding. In that response, and as indicated above, the School claims the privilege applies to communications between the Superintendent and Attorney Waugh. Thus, based on the School's May 23rd supplemental response, coupled with Ms. Spaulding's appeal petition, it is unclear if Ms. Spaulding received the School's May 23rd response and what she is objecting to. Particularly, in light of the fact that Attorney Meltzer is not listed as an author or recipient of any of the emails listed in the School's privilege log. Conclusion Accordingly, in light of the above, Ms. Spaulding must clarify this matter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Corey Spaulding