Framingham Reporter v. Wellesley, Town of - Public Schools (SPR 20210450)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0450 Cynthia D. Mahr Assistant Superintendent for Finance and Operations Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: I have received the petition of Framingham Reporter appealing the response of the Wellesley Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2021, Framingham Reporter requested the following: “all email, documents, records, etc. exchanged between Wellesley Public Schools Superintendent…and Wellesley Police Department Resource Officer… between December 1, 2017 and December 31, 2017.” The School provided a response on February 22, 2021, which included responsive records, and a record redacted pursuant to the attorney-client privilege. Unsatisfied with the Town’s response, Framingham Reporter petitioned this office and this appeal, SPR21/0450 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(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

Cynthia D. Mahr SPR21/0450 Page 2 March 8, 2021 The School’s February 22nd response In its February 22nd response, the School indicates one email has been withheld pursuant to attorney-client privilege. In the current appeal, Framingham Reporter contends “[e]mail header information is also not protected by any of the statutory exemptions to the public 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 (2017); 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. 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, § 10A(a). The School explains the December 15, 2017 email from seeks legal advice from Town Counsel about a court order and the communication was made in confidence and the privilege has not been waived. The School also provides a privilege log with the date, the names of the author and recipients, as well as that it is an email that seeks “legal advice regarding a court order.” Where the School indicates that the December 15, 2017, email regarding this request includes confidential communications between School Counsel and the School’s employees, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the School has met its burden to redact the body of the December 15th email pursuant to attorney-client privilege. However, it is unclear how header information can be redacted pursuant to attorney-client privilege. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Cynthia D. Mahr SPR21/0450 Page 3 March 8, 2021 Machine-readable format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In its appeal, Framingham Reporter contends “the RAO has failed to provide these email records in searchable, machine readable format as required by the Public Records Law and its access regulations.” Subsequent to the opening of this appeal, the School provided a response to on February 22, 2021, indicating “[t]he Town provided Mr. Reporter with the requested records in a searchable format.” Where an attorney of the Public Records Division confirmed the ability to search the records, I find the School has provided the requested records in compliance with 950 C.M.R. 32.04(5)(d). Conclusion Accordingly, the School is ordered to provide Framingham Reporter with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Framingham Reporter may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Framingham Reporter