Justin P. Wilson-Gabor v. East Longmeadow, Town of - Public Schools (SPR 20222184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2022 SPR22/2184; SPR22/2185 Gordon C. Smith Superintendent of Schools East Longmeadow Public Schools 180 Maple Street East Longmeadow, MA 01028 Dear Superintendent Smith: I have received the petitions of Justin and Alicia Wilson-Gabor appealing the response of the East Longmeadow Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2022, Dr. Wilson-Gabor, and on June 3, 2022, Ms. Wilson-Gabor, requested certain emails from the School. Previous Appeals These requests were the subject of previous appeals. See SPR22/1721 Determination of the Supervisor of Records (August 10, 2022), SPR22/1722 Determination of the Supervisor of Records (August 10, 2022), and SPR22/1969 Determination of the Supervisor of Records (September 9, 2022). In my September 9th determination, I found that the School may properly withhold one email under Exemption (f), and ordered the School to provide a detailed index of other records withheld under the attorney-client privilege. Subsequently, the School responded to both Dr. and Ms. Wilson-Gabor on September 22, 2022, providing a privilege log. Unsatisfied with the School’s response, Dr. and Ms. Wilson-Gabor further appealed, and these cases were 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). 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

Gordon C. Smith SPR22/2184; SPR22/2185 Page 2 October 7, 2022 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 September 22nd Response In its September 22, 2022 response, the School claims the attorney-client privilege for withholding numerous records. 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 September 22nd response, an attorney for the School provides a privilege log with a detailed description of each document the School intends to withhold under the attorney-client privilege. Where the School has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, I find the School has met its burden to withhold the documents listed in the September 22nd privilege log.

Gordon C. Smith SPR22/2184; SPR22/2185 Page 3 October 7, 2022 Conclusion Accordingly, I will consider this administrative appeal closed. If Dr. and Ms. Wilson- Gabor are 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: Justin Wilson-Gabor Alicia Wilson-Gabor Brendan Hughes, Esq.