Lorraine Romasco v. Nashoba Regional School District (SPR 20200281)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 27, 2020 SPR20/0281 Patricia Marone Business Manager/Records Access Officer Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Ms. Marone: I have received the petition of Lorraine Romasco appealing the response of the Nashoba Regional School District (District) to a request for public records. G. L. c. 66, § 1O A; 950 C.M.R. 32.08(1 ). Specifically, Ms. Romasco requested the following records: 1. Ball Consulting/Public Relations Group to understand the scope of the work they've been hired to do, for whom, and who their main contact(s) is/are: a. All copies of RFPs for public relations/communication support (not SUl'e that this is required by law but including in case there was a request for info), any resultant contract drafts and final contract; 1 b. All communication between the District Administration (Superintendent, Assistant Superintendent) and the firm; c. All communication between the School Committee (including the Chair) and the firm; d. Who are the District and School Committee contacts interacting with the firm's agents? e. All communication referencing the film and its work and findings, discussions of the work they would be perf01ming or are perfo1ming with any of the above entities; and f. All financial commitments (paid or upcoming) 2. Independent counsel scope/agreements on the work he is doing to investigate the administration's role in events concerning [an identified person]: Are they are on a retainer? Is this an hourly fee effort or is it another arrangement? What is the financial arrangement and cost incurred to date? Please also identify if there are outstanding fees for this work? 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 SPR20/0281 Page2 February 27, 2020 a. Correspondence between independent counsel and the School Committee Chair or any other District or School Committee representative; b. When is the work expected to be completed? If December 18th, to the extent possible, please provide a copy of the findings. c. Who are the District and School Committee contacts interacting with the independent counsel? d. What is the commitment to sharing the findings with the community? Prior Determinations The requested records were the subject of a prior appeal and records access officer petition. See SPR19/2563 and SPR20/0169 Determinations of the Supervisor of Records (Supervisor) (January 3, 2020 and February 3, 2020). In my January 3rd determination, I approved the District's petition to charge fees for the segregation and redaction of responsive records. In my February 3rd determination, I found that Ms. Romasco had paid the District's $175.00 fee estimate; however, as of the date of this determination, the District had not provided the records. As a result, I ordered the District to provide Ms. Romasco with the responsive records, and to the extent feasible, provide the records on a rolling basis. On February 5th, the District provided Ms. Romasco with the responsive records, including 780 pages of email communications, accompanied by a response and privilege log to account for the email communications that were withheld in their entirety under the common law attorney-client privilege. Current appeal In her February 12th petition to the Supervisor pertaining to redacted emails she received, Ms. Romasco states," .. .I am questioning overuse of attorney/client privilege with the redactions that were taken." As a result, this office opened the current appeal, SPR20/0281 regarding the communications that were provided in redacted format under the 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, § 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). 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, § IO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends

Patricia Marone SPR20/0281 Page 3 Febmary 27, 2020 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 The District provided Ms. Romasco with a 3-page privilege log to account for email communications that were withheld in their entirety under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). However, the District did not provide Ms. Romasco with a privilege log to account for the redacted email she received. 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 affomative 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) .. The Court affirmed the "general mle" 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 ofElec. 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).

Patricia Marone SPR20/0281 Page 4 February 27, 2020 Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege that 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, § 1O A(a). Emails withheld under attorney-client privilege A review by this office of the District's privilege log for the emails that were withheld reveals that the District listed the names of the senders and recipients of the email communications and the general subject matter of the communication by providing the subject line of each of the emails. The District explained in its response and during a discussion with this office that the subject matter of the emails listed in the privilege log that were withheld in their entirety pertain to the communications between District employee's, a consultant hired to act as the District's agent and District Legal Counsel surrounding an employee's handling of an underlying issue between a student and a school employee. While the District's privilege log complied with the requirements in Suffolk, the District did not provide the dates of each of those communications in the 3-page privilege log, which is one of the requirements in the Public Records Law. See G. L. c. 66, § lOA(a). During a telephone call with the District's Legal Counsel, Kevin S. Freytag of Murphy, Hesse, Toomey & Lehane, LLP, the District agreed to send Ms. Romasco an updated privilege log listing the dates of each of the emails that it withheld in their entirety. In his February 5th response, Attorney Freytag states, "[f]irst, [the communications] are between the District, as a client, the Consultant (i.e. David Ball, Greg Turner), as the District's representative, and District Counsel (i.e. Michael J. Maccaro, Nan O'Neil), in which the District or the Consultant is either explicitly seeking legal advice from District Counsel, or relaying relevant information to District Counsel to ensure that District Counsel may render fully informed legal advice." citing, Suffolk Constr. Co., 449 Mass. 449. Attorney Freytag also indicates in his response that the parties communicated with one another in confidence, the communications were not shared with the public and the attorney client privilege has not been waived. Attorney Freytag states, "[t]he District is aware that disclosing attorney-client communications to a third party generally unde1mines the privilege ... However, the Consultant was not a third-party, but rather acted as the Client's representative. See Jensen v. Daniels, 57 Mass. App. Ct. 811, 819 (2003) (presence of client's agent did not destroy attorney-client privilege)." In addition, in his February 5th response, Attorney Freytag states, "[t]he privilege enable[s]clients to make full disclosure to legal counsel of all relevant facts, no matter how embarrassing or damaging these facts might be, so that counsel may render fully informed legal advice. citing, [Suffolk] at 449."

Patricia Marone SPR20/0281 Page 5 February 27, 2020 Based on the discussion with this office, the District's February 5th response and the 3- page privilege log, I find that once the dates of each email have been provided, the District will have met its burden of specificity in withholding the email communications under the attorney client privilege under both the 3-part test in Suffolk and the requirements in the Public Records Law, except the requirement. See Suffolk Constr. Co., 449 Mass. at 450; see also G. L. c. 66, § lOA(a). Email redacted emails under attorney-client privilege and provided to Ms. Romasco Further, the District provided Ms. Romasco with 780 pages of records, some of which were redacted under the common law attorney-client privilege. While the District redacted certain of the email content and provided the headers of the emails, including the senders and recipients; the subject line; and the dates of the emails, the District did not provide a detailed privilege log to explain the general subject matter of each of the emails that would be the basis for the District's claim that the content is privileged. In her petition for this appeal, Ms. Romasco questions the redacted emails where Legal Counsel is only copied on the communications. It is her contention that no legal advice from an attorney was requested or provided to the District. Your February 5th response states, "[p ]lease note that in some instances, an email within an email chain has been redacted that does not list District Counsel as a recipient of that email. Nevertheless the content of the email has been redacted because that email was originally sent to District Counsel (a s demonstrated by the enclosed privilege log) and is therefore protected by the attorney-client privilege." I note that District Counsel is referring to the 3-page privilege log that lists the emails that have been entirely withheld. The District did not provide a privilege log to account for the emails that were redacted under the attorney-client privilege. I find that the District did not meet its burden of specificity in withholding content from the emails provided to Ms. Romasco under the requirements in Suffolk and the Public Records Law. See Suffolk, 449 Mass. at 450; see also G. L. c. 66, § lOA(a). Conclusion It is my understanding that Attorney Freytag, on behalf of the District, will update its privilege log to include the dates of the communications withheld under the attorney-client privilege to fully comply with G. L. c. 66, § lOA(a), and provide Ms. Romasco with the updated privilege log. It is also my understanding that the District will provide a detailed privilege log for the emails Ms. Romasco received in redacted format to comply with both Suffolk and the Public Records Law. See Suffolk, 449 Mass. at 450; G. L. c. 66, § lOA(a). Accordingly, the District is ordered to provide Ms. Romasco with the detailed privilege logs, 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.

Patricia Marone SPR20/0281 Page 6 February 27, 2020 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Lorraine Romasco Kevin S. Freytag, Esq., Mwphy, Hesse, Toomey & Lehane, LLP (via email)