Mitchell I. Greenwald, Esq. v. Lenox, Town of - Public Schools (SPR 20222117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2022 SPR22/2117 Kerry L. Sullivan Public Records Access Officer Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Attorney Mitchell I. Greenwald appealing the response of the Town of Lenox (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 9, 2022, Attorney Greenwald requested 5 categories of records. Previous Appeals This request was the subject of previous appeals. See SPR22/1486 Determination of the Supervisor of Records (July 12, 2022) and SPR22/1686 Determination of the Supervisor of Records (August 2, 2022). In my August 2nd determination, I ordered the Town to clarify its claims under Exemption (c), and the attorney-client privilege. Subsequently, the Town responded on August 30, 2022. Objecting to the Town’s claim of attorney-client privilege, Attorney Greenwald further appealed, and this case 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 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

Kerry L. Sullivan SPR22/2117 Page 2 September 29, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Town’s August 30th Response In its August 30, 2022 response, the Town states that it has redacted numerous emails pursuant to the attorney-client privilege. 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). In its August 30th response, the Town provides the following information concerning its claim of attorney-client privilege: With regard to the attorney/client privilege, no documents have been withheld. Rather, redactions were made on pages 23, 26, 27, 28, 32, 33, 34, 35, 36, 37, 39, 43, 49, 50, 51, 53, and 55 to redact the substance of correspondence between School Committee attorney Sarah Spatafore and District employees. This correspondence includes requests for advice from counsel and advice of counsel related to responses to public records requests, the School Committee’s complaint procedure, and personnel disputes. In his appeal petition, Attorney Greenwald contends that “the Town’s response did not comply with the Supervisor’s order of August 2. Specifically, the Town did not provide the detailed index as to attorney-client privilege.” Based upon a review of the redacted emails provided by the Town, it is my understanding that the Town complied with the requirements under the attorney-client privilege. Specifically,

Kerry L. Sullivan SPR22/2117 Page 3 September 29, 2022 although the substantive texts of the communications were redacted, the Town left intact the email header information, which includes the names of the authors and recipients, the dates, and the subjects of each email. Between the redacted records produced by the Town, and the information provided in the Town’s August 30th response, I find that the Town has met its burden to redact the responsive emails pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Greenwald is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Mitchell I. Greenwald, Esq.