Nickole Johanson v. Waltham, City of - Public Schools (SPR 20221685)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2022 SPR22/1685 Brian K. Reagan, Ed. D. Superintendent of Schools Waltham Public Schools 617 Lexington Street Waltham, MA 02452 Dear Dr. Reagan: I have received the petition of Nickole Johanson appealing the response of the Waltham Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2022, Ms. Johanson requested a copy of all paper and electronic records, from September 1, 2021 to the date of her request that were received or sent by thirty- three (33) specifically-named individuals. Previous appeals This request was the subject of previous appeals. See SPR22/0911 Determination of the Supervisor of Records (Supervisor) (May 3, 2022) and SPR22/1201 Determination of the Supervisor (June 7, 2022). On July 12, 2022, the School provided a further response to Ms. Johanson, which included responsive records. Current appeal Unsatisfied with the School’s provision of records, on July 22nd, Ms. Johanson petitioned the Supervisor again, and the current appeal, SPR22/1685, was opened as a result. In her July 22nd petition, Ms. Johanson asserts, “[the School] said my request had over 20,000 documents but [the School] only sen[t] me 100 and there was a lot of documents that I requested that were missing.” 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 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

Dr. Brian K. Reagan SPR22/1685 Page 2 August 2, 2022 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) (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 School’s July 12th response In its July 12, 2022 response, the School states: Because the records request was expressed in terms of documents related to various names and other terms, some of which were quite generic, and also sought communications between various individuals, the results of the initial search yielded more than 20,000 documents. This onerous request then required substantial time spent by [the Superintendent’s office] reviewing these documents in order to determine which of them were subject to disclosure in order to determine which of them were subject to disclosure under the Massachusetts Public Records Law and which were documents of the type exempted from disclose under the Public Records Law. The School provided records in electronic form, explaining that these records are not otherwise exempt from disclosure. The exemptions claimed to withhold certain of the records are Exemption (a) due to student records information; Exemption (c) due to personnel records relating to other employees and medical information relating to students or staff; Exemption (n) due to records relating to security cameras in Waltham High School and related matters; and the common law attorney-client privilege due to communications between the School and its legal counsel. Further, the School asserts, “[t]o be clear, where a particular document contains information that is subject to disclosure under the Public Records Law and information that is exempt from disclosure, the exempt information has been redacted.” Based on the School’s July 12th response, I find it is unclear whether the claimed exemptions were utilized to redact the responsive records Ms. Johanson received, or whether the School has withheld certain of the records in their entirety under Exemptions (a), (c) and (n). Regarding any records withheld in their entirety, it is unclear whether the School can redact certain information from those records, and provide Ms. Johanson with the balance of the record(s). The School has not met its burden of specificity in responding to Ms. Johanson’s

Dr. Brian K. Reagan SPR22/1685 Page 3 August 2, 2022 request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The School must clarify the issues with the exemptions claimed. Common law attorney-client privilege With regard to the communications the School withheld under the attorney-client privilege, the School is advised that it has not met its burden of specificity under the 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 Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 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 Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. 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. In addition to following the requirements in Suffolk, the School must also meet the requirements in the Public Records Law. 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 is ordered to provide Ms. Johanson with an index, of the communications between the School and its legal counsel, that complies with the requirements in Suffolk and the Public Records Law. Suffolk, 449 Mass. at 450 n.9; G. L. c. 66, § 10A(a). Conclusion Accordingly, the School is ordered to provide Ms. Johanson with a response to her request in a manner consistent with this order, the Public Records Law, and its Regulations

Dr. Brian K. Reagan SPR22/1685 Page 4 August 2, 2022 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Nickole Johanson