Stephen J. Morgan v. Ashland, Town of - Public Schools (SPR 20221718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2022 SPR22/1718 Karen Johnson Records Access Officer Ashland Public Schools 87 West Union Street Ashland, MA 01721 Dear Ms. Johnson: I have received the petition of Stephen Morgan appealing the response of the Ashland 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 June 6, 2022, Mr. Morgan requested “executive session minutes from OCT[.] 21, 2021” On June 17, 2022, the School responded. Unsatisfied with the School’s response, Mr. Morgan petitioned this office and this appeal, SPR22/1718, 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 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. Att’y 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 School’s June 17th Response 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

Karen Johnson SPR22/1718 Page 2 August 8, 2022 In its June 17, 2022 response, the School provides the responsive record and notes that it has redacted the responsive record pursuant to the attorney-client privilege. The School also provides “all other executive session minutes related to open meeting complaints you have filed with the Committee” which also were redacted pursuant to the attorney-client privilege. Common law 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, 449 Mass. 444 (2007). The 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 Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric 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 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 not inspect the record but 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). Citing Suffolk, the School asserts: [T]he Committee has redacted the responsive documents for confidential communication between the Committee and Committee’s counsel, and accordingly exempt from disclosure under the attorney-client privilege. The document in question reference communications received from the Committee in the course of obtaining legal advice; such communications were made in confidence; and the attorney-client privilege has not been waived. The School also provides a privilege log which states: Date Authors/Recipients Subject matter 10/21/2021 Laurie Tosti; James Adams; Legal advice on responding

Karen Johnson SPR22/1718 Page 3 August 8, 2022 Jennifer King to OML complaint 3/17/2022 Laurie Tosti; Jennifer King Legal advice on responding to OML complaint 4/28/2022 Laurie Tosti; Jennifer King Legal advice on responding to OML complaint Where the School indicates that the record regarding this request are confidential communications between the Committee’s Counsel and the Committee, 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 responsive record under the attorney-client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Stephen Morgan