Colman Herman v. Boston, City of - Public Schools (SPR 20230213)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 17, 2023 SPR23/0213; SPR23/0267 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman appealing the responses of the City of Boston (City) to two requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 12, 2022, Mr. Herman requested “the Phase II(b) report regarding the Mission Hill School.” This request was the subject of a previous appeal. See SPR23/0003 Determination of the Supervisor of Records (January 17, 2023). In my January 17th determination, I closed SPR23/0003 in light of the City providing a further response on December 30, 2022. Unsatisfied with the City’s response, Mr. Herman appealed, and SPR23/0213 was opened as a result. On February 3, 2023, Mr. Herman requested “a copy of the Phase (II) report on the investigation of the Mission Hill School.” The City responded on February 6, 2023, denying the request, and referring back to previous responses it provided to Mr. Herman’s earlier requests for the same record. Unsatisfied with the City’s response, Mr. Herman appealed, and SPR23/0267 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). 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

Shawn A. Williams, Esq. SPR23/0213; SPR23/0267 Page 2 February 17, 2023 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. The City’s December 30th and February 6th Responses In its December 30, 2022 response, the City cites the attorney-client privilege for withholding responsive records. In its February 6, 2023 response, the City denies Mr. Herman’s request, and refers back to its previous responses. 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 December 30, 2023 response, the City provides the following information concerning the responsive record: The withheld record is a sixty-six (66) page document prepared by the Hinckley Allen & Snyder LLP law firm. . . . The author of the record is HINCKLEY ALLEN & SNYDER LLP, including [six named attorneys]. . . . The date of the record is December 7, 2022. . . .

Shawn A. Williams, Esq. SPR23/0213; SPR23/0267 Page 3 February 17, 2023 The record consists of the results of a Hinckley Allen & Snyder investigation into the Mission Hill K-8 School. . . . The record contains information between an attorney and client related to “the client’s search for legal advice from the attorney in his capacity as such.” The record is the result of an investigation whereby the Boston Public Schools provided information to Hinckley Allen & Snyder in an effort to conduct an investigation. All of these communications between the Boston Public Schools and the law firm “were made in confidence.” In all cases “the privilege as to these communications has not been waived.” In its earlier October 3, 2022 response, referenced in its February 6th response, the City states that “the recipient is the Boston Public Schools.” Based on the information provided in the City’s December 30th response, in conjunction with the information provided in the previous responses, I find that the City has not met its burden to withhold the responsive record pursuant to the attorney-client privilege. Specifically, the City has not demonstrated how the report, in its entirety, would constitute communications made in the course of a client’s search for legal advice. Further, where the City has described the recipient merely as “the Boston Public Schools,” I find the City has not provided the names of the recipients of the report, as required under G. L. c. 66, § 10A(a). Conclusion Accordingly, the City is ordered to review the records, redact where necessary, and provide the responsive records to Mr. Herman, in a manner consistent with this order, the Public Records Law and its Regulations 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: Colman Herman