Colman Herman v. Boston, City of - Public Schools (SPR 20230612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2023 SPR23/0612 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 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 December 12, 2022, Mr. Herman requested “the Phase II(b) report regarding the Mission Hill School.” On February 3, 2023, Mr. Herman requested “a copy of the Phase (II) report on the investigation of the Mission Hill School.” Previous Appeals These requests were the subject of previous appeals. See SPR23/0003 Determination of the Supervisor of Records (January 17, 2023) and SPR23/0213; SPR23/0267 Determination of the Supervisor of Records (February 17, 2023). In my February 17th determination, I found that the City had not met its burden to withhold the responsive records pursuant to the attorney-client privilege. Subsequently, the City responded on March 21, 2023, reiterating its claim of the attorney-client privilege. Unsatisfied with the City’s response, Mr. Herman 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). 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. SPR23/0612 Page 2 April 14, 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 March 21st Response In its March 21, 2023 response, the City reiterates its previous claim of attorney-client privilege for withholding the 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). In its previous December 30, 2022 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. . . . The record consists of the results of a Hinckley Allen & Snyder investigation into the Mission Hill K-8 School.

Shawn A. Williams, Esq. SPR23/0612 Page 3 April 14, 2023 . . . 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 March 21st response, the City provides the following additional information concerning the recipients of the record: The privileged information was provided by email from William Sinnott, a partner at the Hinckley Allen Law firm, to Lisa Maki, the Legal Advisor to Boston Public Schools. The cover sheet of the privileged document states that it was: PREPARED FOR: BOSTON PUBLIC SCHOOLS SUPERINTENDENT MARY SKIPPER FORMER SUPERINTENDENT DR. BRENDA CASSELLIUS Based on the information provided in the City’s March 21st 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 cover sheet information, including 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman