Celeste DeMarco v. Wellesley, Town of - Town Clerk (SPR 20202014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2014 Cynthia D. Mahr, SFO Assistant Superintendent for Finance and Operations Town of Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: I have received the petition of Celeste DeMarco appealing the response of Town of Wellesley Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2020, Ms. DeMarco requested: “any and all documentation for all communication by anyone in the school, including the school committee, in any media form which pertain to the email from Daniel Hedequist to Tom Harrington regarding attendance of graduation dates May 30, 2017.” The School provided an October 16, 2020 response informing Ms. DeMarco that the School has three email communications that are responsive to her October 1st request. However, the School is withholding these emails pursuant to the common law attorney-client privilege. Unsatisfied with the October 16th response, Ms. DeMarco petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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(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…”); 950 C.M.R. 32.06(3); see 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

Cynthia Mahr, SFO SPR20/2014 Page 2 November 2, 2020 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 Department has claimed that the records provided have been redacted under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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 affirmative 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 rule” 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 of Elec. 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). Pursuant to the Public Records Law, in assessing whether a records custodian has

Cynthia Mahr, SFO SPR20/2014 Page 3 November 2, 2020 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, § 10A(a). The School’s October 16th response indicates: “Attorney Harrington and his law firm, Miyares and Harrington, LLP, represent the [School]. The responsive emails between Attorney Harrington and Superintendent Lussier were sent during the course of Attorney Harrington’s representation of the [School]. Notably, Attorney Harrington and Miyares and Harrington, LLP assisted the School Department in all matters related to [Ms. DeMarco’s] presence on School Department property. The three emails were sent in confidence and for the purposes of obtaining legal advice about [Ms. DeMarco’s] attendance at the 2017 graduation ceremony. The communications have not been shared with anyone outside of the Town or with an attorney who is not working under Attorney Harrington’s direct supervision at Miyares and Harrington, LLP. Thus, the privilege has not been waived.” In meeting the requirements of the attorney-client privilege under the Public Records Law, the School’s response and privilege log provides: “the names of the authors and recipients of the emails, the dates of the communications, the subject matter of the communications, and the grounds upon which the attorney-client privilege is being claimed.” See G. L. c. 66, § 10A(a). The School has already indicated in its October 16th response that the emails were sent in confidence during the course of the client’s search for legal advice from the School’s Legal Counsel in his capacity as such. Based on its October 16th response and privilege log, I find that the School has met its burden in withholding the three email communications between the School’s Legal Counsel and the School’s Superintendent. See Suffolk, 449 Mass. 450, fn 9; see also G. L. c. 66, § 10A(a). Conclusion Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Celeste DeMarco Thomas Harrington, Esq., Miyares and Harrington, LLP