Cameron Bateman v. Cohasset, Town of - Public Schools (SPR 20201799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 6, 2020 SPR20/1799 Patrick E. Sullivan, Ed. D. Superintendent Cohasset Public Schools 143 Pond Street Cohasset, MA 02025 Dear Dr. Sullivan: I have received the petition of Cameron Bateman appealing the response of the Cohasset Public School Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 4, 2020, Mr. Bateman requested, “… copies of all emails between the School Committee and counsel regarding the cancellation of a bargaining session on July 31, 2020.” Mr. Bateman appealed and SPR20/1799 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, § 10A(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, § 10(d)(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). The Department’s August 17th response The Department responded on August 17th and provided a log regarding emails as of the time of the request and stated that, “[w]e are withholding all of the emails in their entirety, based 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

Patrick E. Sullivan, Ed. D. SPR20/1799 Page 2 October 6, 2020 on the attorney-client privilege and the deliberative process exemption under MGL Chapter 4, Section 7, Clause 26(d).” Common law attorney-client privilege The Department has claimed that the requested communications are protected entirely under the common law attorney-client privilege. The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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). 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. 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, § l0A(a). In its August 17th response, the Department sent Mr. Bateman an email log. The log detailed the date, time, and the initials of the author, recipient and the person who may have been copied. However, the Department’s response did not establish 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; that the communications were made in confidence; and that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9.

Patrick E. Sullivan, Ed. D. SPR20/1799 Page 3 October 6, 2020 Based upon the Department’s response, I find the Department has not withheld responsive records in compliance with the Suffolk decision and the Public Records Law. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, §7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely states that the Department is “…withholding all of the emails in their entirety … based upon … [Exemption] (d)” without any further explanation as to how the requested records are exempt from disclosure. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Department must identify what records it has in its possession, custody or control that are responsive to Mr. Bateman’s request. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(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 ... "); see also Globe Newspaper ----------------- Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find that the Department did not satisfy its burden in responding to this records request.

Patrick E. Sullivan, Ed. D. SPR20/1799 Page 4 October 6, 2020 Order Accordingly, the Department is ordered to provide Mr. Bateman with a response to the request in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Cameron Bateman