Kim Reichelt v. Wayland, Town of - Public Schools (SPR 20230488)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 23, 2023 SPR23/0488 Parry Graham Public Records Access Officer Wayland Public Schools 41 Cochituate Road Wayland, MA 01778 Dear Mr. Graham: I have received the petition of Kim Reichelt appealing the response of the Wayland Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 11, 2022, Ms. Reichelt requested records related to notes used in a School Committee meeting. On January 24, 2023, Ms. Reichelt modified her request for a single note passed between a named Wayland Public Schools Committee member and the School’s attorney. Prior Appeals The requested records were the subject prior appeals. See SPR22/2782 Determination of the Supervisor of Records (December 16, 2022) and SPR23/0145 Determination of the Supervisor of Records (February 7, 2023). In my February 7th determination, I closed the appeal after the School notified this Office that it would provide a further response. On February 22, 2023, the School responded. Unsatisfied with the School’s response, Ms. Reichelt petitioned this office and this appeal, SPR23/0488, 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

Parry Graham SPR23/0488 Page 2 March 23, 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. Attorney 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 School’s February 22nd response In the School’s February 22, 2023, response it stated that it is withholding the requested records pursuant to the attorney-client privilege. Current Appeal In her current appeal, Ms. Reichelt suggests that the School waived the privilege because the contents of the letter were discussed at the meeting. 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 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 the School’s February 22nd response, it addressed Ms. Reichelt’s claim stating, “…a single member of the School Committee is not authorized to waive an attorney-client privilege held by the Committee itself, the privilege could not have been, and was not, waived by [a named person’s] comment, and the note remains exempt from disclosure.” The School further explained:

Parry Graham SPR23/0488 Page 3 March 23, 2023 The General Laws provide specific authority for School Committees to engage independent legal counsel. See M.G.L. c. 71, §§ 37E - 37F (authorizing school committees to engage legal counsel for collective bargaining and for the general purposes of the committee). In this context, it is the School Committee as a body, and not any individual member of the School Committee, who is the client, and with whom the attorney-client relationship is established. See Mass.R.Evid. 502(a) (defining “client” for purposes of the attorney-client privilege as “a person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view to obtaining professional legal services.”). The attorney- client privilege is held by the client, and, in turn, the privilege may only be waived by the privilege holder (ie, the client). See Mass.R.Evid. 502(c), 523(a). Thus, where the School Committee as a body is the client and the holder of the attorney-client privilege, a statement by a single member of the School Committee cannot operate to waive the attorney-client privilege. As with any other matter within the authority of the School Committee, the School Committee may only act as a whole, and individual members are not authorized to act on behalf of the School Committee. See, Galli v. Pittsburg Unified Sch. Dist., No. C 09-3775 JSW JL, 2010 WL 4315768, at *4 (N.D. Cal. Oct. 26, 2010), citing Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 348-349 (1985) (“[t]he power to waive the [attorney-client] privilege rests with the Board, and the actions of an individual Board member alone cannot waive the privilege.”). Where the contents of the letter appear to have been discussed at a public meeting, it is unclear how the privilege has not been waived. Disclosing attorney-client communications to a third party generally undermines the privilege. Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). The School must clarify this matter. The School is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Consequently, the School must provide a privilege log consistent with G. L. c. 66, § 10A(a). Conclusion Accordingly, the School is ordered to provide Ms. Reichelt with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us.

Parry Graham SPR23/0488 Page 4 March 23, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Kim Reichelt Kevin F. Bresnahan, Esq.