Patrick Higgins v. Fall River, City of - Public Schools (SPR 20220154)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 7, 2022 SPR22/0154 Debra Cabral Records Access Officer Fall River School Committee Fall River Public Schools 417 Rock Street Fall River, MA 02720 Dear Ms. Cabral: I have received the petition of Patrick Higgins appealing the response of the City of Fall River Public Schools (School) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2022, Mr. Higgins requested, “a .pdf file copy of all executive session minutes for the calendar years, 2018, 2019, 2020 and 2021.” The School provided a response to Mr. Higgins on January 21, 2022. Unsatisfied with this response, Mr. Higgins petitioned this office and this appeal, SPR22/0154, 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Debra Cabral, RAO SPR22/0154 Page 2 February 7, 2022 The School’s January 21st Response In its January 21, 2022 response, the School stated, “[p]lease find enclosed the executive session minutes for calendar years 2020 and 2021 through May of 2021. The School Committee is in the process of reviewing and redacting the executive session minutes for calendar years 2018, 2019, and the remainder of 2021, and these will be provided to you after the review is complete, in accordance with M.G.L. c. 30A § 22(g). The School’s January 21st response also explained, “the executive session minutes include privileged attorney-client communications that are protected from disclosure under the doctrine of attorney-client privilege.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The School’s January 21st response explained that it redacted “information that is exempt from disclosure under the Public Records Law, M.G.L. c. 4 § 7(26)(a), and the Open Meeting Law, M.G.L. c. 30A § 22(f)-(g). Specifically, the executive session minutes requested contain minutes from sessions held pursuant to: M.G.L. c. 30A § 21(a)(2), namely [t]o conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel; and M.G.L. c. 30A § 21(a)(3), [t]o discuss strategy with respect to collective bargaining or litigation if an open

Debra Cabral, RAO SPR22/0154 Page 3 February 7, 2022 meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.” The School indicated that “[e]xecutive session minutes, preparatory materials, and documents and exhibits used at executive session held pursuant to M.G.L. c. 30A § 21(a)(2)-(3) may be withheld from disclosure to the public, unless and until such time as litigating, negotiating, or bargaining position is no longer jeopardized by such disclosure. M.G.L. c. 30A § 22(f)-(g). Given that negotiations are currently ongoing, the District's position would be jeopardized by disclosure at this time.” Based on the School’s January 11th response it is unclear if responsive documents are based exclusively on the laws regarding “executive session minutes.” The School needs to provide additional information regarding whether the documents are still in executive session in accordance with the Open Meeting Law. See G. L. c. 30A, § 22(f). In order to make a determination regarding the redactions of the executive session minutes at issue, the School must clarify whether it is claiming that the purpose for which the executive session remains ongoing. See G. L. c. 30A, § 22(f). 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. 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, § 10A(a). The School’s January 11th response stated, “[t]he Fall River School Committee is represented by Attorney Bruce Assad. The School Committee has engaged Attorney Assad for legal advice on a range of legal matters. The School Committee has been and is presently involved in collective bargaining agreement negotiations with various employee unions, as well as contract negotiations with non-union employees. Throughout the entirety of these negotiations, the Fall River School Committee has engaged Attorney Assad for legal advice for

Debra Cabral, RAO SPR22/0154 Page 4 February 7, 2022 the purposes of responding to, strategizing, and negotiating those collective bargaining agreements and contracts. The School Committee has not waived the attorney-client privilege.” The School is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. The School must provide a privilege log and further explain how the above cited communication constitutes attorney-client privileged communication claimed in the December 9th response. Conclusion Accordingly, the School is ordered to provide Mr. Higgins 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. 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: Patrick Higgins