Erik Moore v. Bridgewater Raynham Regional School District (SPR 20220403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 7, 2022 SPR22/0403 Judy MacDougall Bridgewater Raynham Regional School District 166 Mt. Prospect Street Bridgewater, MA 02324 Dear Ms. MacDougall: I have received the petition of Erik Moore appealing the response of the Bridgewater Raynham Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2022, Mr. Moore requested the following records regarding a specified complaint: [1] A copy of [an identified Attorney’s] report [2] [A] copy of the executive session meeting minutes from all meetings where this was discussed [3] Visibility into any motions made or votes taken during the process and what each member voted[.] The District provided a response on January 14, 2022, denying access to the responsive records pursuant to Exemptions (a), (b) and (c) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (b), (c). Unsatisfied with the District’s response, Mr. Moore petitioned this office and this appeal, SPR22/0403, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Moore’s purpose in making the request has no bearing on the public status of any existing 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

Judy MacDougall SPR22/0403 Page 2 March 7, 2022 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 agency or municipality 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. The District’s January 14th response The District claims the report and executive session minutes are exempt from disclosure under the attorney-client privilege, as well as Exemptions (a), (b), and (c). 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).

Judy MacDougall SPR22/0403 Page 3 March 7, 2022 In its response, the District states that an identified attorney “. . . was engaged by the School Committee through its attorney. . . . [The Attorney] submitted the report to [the School’s] Attorney. While the School Committee reviewed the report with its counsel in accordance with M.G.L. Chapter 30A, §21(a)(1), no member of the School Committee possesses a copy of the report. The discussions regarding this report have been for the purpose of seeking and obtaining legal assistance and is therefore protected from disclosure under attorney-client privilege.” The District further explains that it “. . . used the report, obtained by its counsel, to engage in the deliberative process privilege which covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which the School Committee’s governmental decision regarding the report were formulated. That is, the report itself was essential to the School Committee’s deliberation under M.G.L., c.30A, § 21(a)(1), ‘to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.’” The District cites Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). Open Meeting Law Mr. Moore’s appeal, related to the release of executive session meeting minutes and a document used at the meeting, raises issues under the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the disclosure of the requested records. The parties may wish to contact the AGO about this matter. See G. L. c. 30A, § 23. Sincerely, Rebecca S. Murray Supervisor of Records cc: Erik Moore