Kim Reichelt v. Wayland, Town of - Public Schools (SPR 20231077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2023 SPR23/1077 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 to a single note between a named Wayland Public Schools Committee member and the School’s attorney. Prior Appeals The requested records were the subject of prior appeals. See SPR22/2782 Determination of the Supervisor of Records (December 16, 2022); SPR23/0145 Determination of the Supervisor of Records (February 7, 2023); and SPR23/0488 Determination of the Supervisor of Records (March 23, 2023). In my March 23rd determination, I found it unclear how the requested records could be withheld pursuant to the attorney-client privilege and ordered the School to provide a further response. On April 6, 2023, the School responded providing further explanation for withholding the requested records pursuant to the attorney-client privilege. Unsatisfied with the School’s response, Ms. Reichelt petitioned this office and this appeal, SPR23/1077, 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 SPR23/1077 Page 2 June 6, 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 April 6th response In the School’s April 6, 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 note 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 April 6th response, it provided the requested privilege log and stated the following: The Supervisor’s Determination directs the District to provide clarification how the attorney-client privilege has not been waived with respect to the communication in question. First, Ms. Grieco’s statement during the meeting that “I asked the lawyer, and his view is that this is covered by our agenda today,”

Parry Graham SPR23/1077 Page 3 June 6, 2023 does not constitute disclosure of a privileged communication which would waive the attorney-client privilege. The statement in question simply states a conclusion; it does not reveal the specific substance of the inquiry made by the client, or any additional details of the response made by the attorney. This statement alone would be insufficient to waive the attorney-client privilege with respect to the communications in question, even if Ms. Grieco had the authority to do so. The case cited in the Supervisor’s Determination, Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009), is not relevant, as that case involved a question about attorney-client communications which were themselves made in the presence of a third party. There is no question that, if a school committee member publicly asked a question of the school committee’s attorney in the presence of others in a public meeting, the privilege with respect to the member’s question and the attorney’s response would be waived. However, that scenario – much more analogous to the facts of Comcast Corp. – is far from what occurred here. Ms. Grieco confidentially sought legal advice in writing from the school committee’s attorney, who confidentially provided such advice in writing. The fact that Ms. Grieco made a subsequent public statement which referenced her having made such an inquiry and received a response cannot be said to provide a basis to waive the privilege as to the full written communications between attorney and client. The School addressed Ms. Reichelt argument in its April 6, 2023, by referencing a previous February 22, 2023, response, stating the following: 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.”).

Parry Graham SPR23/1077 Page 4 June 6, 2023 Where the School indicates that the requested note is a confidential communication between the School’s Counsel and a named School Board member, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the School has met its burden to withhold the requested record under the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Reichelt is 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Kim Reichelt Kevin F. Bresnahan, Esq.