Lonn Drucker v. Boston, City of - Public Schools (SPR 20230570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2023 SPR23/0570 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 Lonn Drucker appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2022, Lonn Drucker requested a copy of “Phase 2 of the Mission Hill School report.” Previous Appeals This request was the subject of previous appeals. See SPR22/1961 Determination of the Supervisor of Records (September 9, 2022), SPR22/2196 Determinations of the Supervisor of Records (October 7, 2022; December 6, 2022), and SPR23/0112 Determination of the Supervisor of Records (January 31, 2023). In my January 31st letter, I found that the City had not met its burden to withhold records pursuant to the attorney-client privilege. Subsequently, the City responded on March 10, 2023. Unsatisfied with the City’s response, Lonn Drucker 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 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. SPR23/0570 Page 2 April 10, 2023 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. Current Appeal In the appeal petition, Lonn Drucker, contends, among other things, the following: Attorney client privilege has not been maintained for the Report’s past sections and thus cannot be claimed now on future sections of the same report as rationale to not comply with public records requests. Further, the report was promoted to the school community as available for review by the client of the report on at least two occasions – and thus the report was not treated as attorney-client protected information and therefore does not meet the provided criteria to be considered attorney-client protected information. Lastly, the privilege log document is also being held under attorney client privilege. The City’s March 10th Response In its March 10, 2023 response, the City reiterates its claim of the attorney-client privilege for withholding responsive 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).

Shawn A. Williams, Esq. SPR23/0570 Page 3 April 10, 2023 In its previous August 19, 2022 response, the City states the following: The withheld report was prepared by outside counsel for the Boston Public Schools. The report contains information between an attorney and client related to “the client’s search for legal advice from the attorney in his capacity as such.” All of these communications “were made in confidence.” In all cases “the privilege as to these communications has not been waived.” The client is the Boston Public Schools. In its September 12, 2022 response, the City provided the following information: The responsive record is a May 2022 document provided by the Hinckley Allen Law Firm, entitled Mission Hill Investigation, Phase II. As indicated in [the City’s] July 21, 2022 letter this record is entirely exempt as an attorney-client privileged communication. The attorney is the Hinckley Allen Law Firm. In its March 10th response, the City provides the following additional information “taken from the email sent to Boston Public Schools.” The City argues that “this along with [the] prior response demonstrates that an attorney-client privilege exists and has not been waived.” From: Sinnott, William F. ... Date: Mon, Dec 5, 2022 at 5:31 PM Subject: FW: Phase II(b) Draft Report To: Lisa Maki ... Cc: Singh, Tara A. ... The City goes on to explain that “the document was prepared for Boston Public Schools, Superintendent Mary skipper Former Superintendent Dr. Brenda Cassellius, and prepared by Hinckley Allen & Snyder LLP.” Based on the information provided in the City’s March 10th response, and in conjunction with information provided in its previous responses, it is my understanding that the City has complied with the requirements under the attorney-client privilege. Specifically, by providing the email header information, along with the names and titles cited above, the City has provided the names of the recipients of the responsive record. Consequently, I find the City has met its burden to withhold the responsive records pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed.

Shawn A. Williams, Esq. SPR23/0570 Page 4 April 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Lonn Drucker