Frank Wood v. Christa McAuliffe Charter School (SPR 20222104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2022 SPR22/2104 Frederick Randall Interim Executive Director Christa McAuliffe Charter School 139 Newbury Street Framingham, MA 01701 Dear Mr. Randall: I have received the petition of Frank Wood, of Framingham Unfiltered, appealing the response of the Christa McAuliffe Charter School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 20, 2022, Mr. Wood requested six categories of communications. Previous Appeal This request was the subject of a previous appeal. See SPR22/1764 Determination of the Supervisor of Records (August 15, 2022). In my August 15th determination, I ordered the School to revise its fee estimate. Subsequently, the School responded on September 12, 2022, providing responsive records and citing the attorney-client privilege to withhold others. 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 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

Frederick Randall SPR22/2104 Page 2 September 27, 2022 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. Current Appeal In his appeal petition, Mr. Wood states that he is “appealing the withheld atty-client privilege information.” The School’s September 27th Response In its September 12, 2022 response, the School states that it has “not provided documents that contain confidential attorney-client information.” In a letter to this office and Mr. Wood on September 15, 2022, an attorney for the School reiterates that “the emails Mr. Wood is objecting to that were withheld were emails that [the attorney] sent to [her] client advising them on this matter.” 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 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). Although the School has provided some information regarding the nature of the withheld records, I find that in accordance with G. L. c. 66, § 10A(a), the School must provide “a detailed description of the record[s], 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.” Further, the School must clarify whether the communications were made in confidence and that the privilege as to the communications has not been waived.

Frederick Randall SPR22/2104 Page 3 September 27, 2022 Conclusion Accordingly, the School is ordered to provide Mr. Wood with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Frank Wood Colby C. Brunt, Esq.