Kim Edmonds v. Belmont, Town of (SPR 20231250)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2023 SPR23/1250 Ellen O’Brien Cushman Town Clerk Town of Belmont 455 Concord Avenue Belmont, MA 02478 Dear Ms. Cushman: I have received the petition of Kim Edmonds appealing the response of the Belmont Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 8, 2023, Ms. Edmonds requested the following: [A]ll emails and texts sent from May 20, 2022 to the present by or to Belmont Public Schools and/or Town of Belmont employees, contractors, agents, consultants, attorneys or other person acting on their behalf that pertain, relate or refer to [a named individual], with the exception of any emails sent by or to the [the individual or their] parents. We are not seeking rosters, schedules or testing dates on which [the individual] might appear but records directly related to [the individual or their] parents. ... Please ensure that the search terms include names, first initial last name and [a specified] email address. The School responded on April 20, 2023, providing numerous responsive records responsive to Ms. Edmonds’ request. Unsatisfied with the School’s response, Ms. Edmonds appealed, and this case was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Edmonds’ status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Ellen O’Brien Cushman SPR23/1250 Page 2 June 26, 2023 It is unclear if Ms. Edmonds may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Ms. Edmonds a greater right of access to the responsive records. 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 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School’s April 20th Response In its April 20, 2023 response, the School provides numerous responsive records, and states that it is withholding one record pursuant to the attorney-client privilege. 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,

Ellen O’Brien Cushman SPR23/1250 Page 3 June 26, 2023 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). Under the attorney-client privilege, the School states that “one email was withheld due to Attorney Client privilege,” and provides the following description: March 2, 2023 Communication from Ken Kramer to Attorney Colleen Shea that was made in confidence for the purposes of obtaining legal advice on OCR case, for which the privilege has not been waived. In this case, the School has provided a detailed description of the record withheld pursuant to the attorney-client privilege, including the names of the author and recipient, the date, the substance, and the grounds for claiming the privilege. Accordingly, I find the School has met its burden to withhold the specific email described above pursuant to the attorney-client privilege. Records in Existence; No Duty to Create Records Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In her appeal petition, Ms. Edmonds contends “that the RAO was actually in possession of at least 46 additional responsive records that it never identified in response to this request which it claimed were attorney client privileged.” Additionally, she argues “that there were a number of additional public records that were responsive to this request that [the School] has refused to produce, including but not limited to correspondence to and from the Office for Civil Rights and to the Department of Elementary and Secondary Education and between and amongst its own staff.” Based on the information provided in Ms. Edmonds’ appeal petition, it is unclear whether the School possesses additional records responsive to this request. To the extent that the School possesses additional responsive records, the School must provide them in a manner consistent with the Public Records, Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Preferred Format of the Requestor A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the

Ellen O’Brien Cushman SPR23/1250 Page 4 June 26, 2023 requestor’s preferred format. See G. L. c. 66, § 6A(d). In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In her appeal petition, Ms. Edmonds contends that “the records produced were not identifiable or searchable by the name of the document and require [Mr. and Ms. Edmonds] to log into the RAO’s online database to access them. [She] request[s] all records are produced in an Excel format that is machine readable and searchable.” In this case, the School must clarify whether it is able to provide the responsive records in the format requested by Ms. Edmonds. Conclusion Accordingly, the School is ordered to provide Ms. Edmonds with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Kim Edmonds Artemis Tingos