Michael Meyers v. Andover, Town of - Public Schools (SPR 20232023)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2023 SPR23/2023 Alison Phelan Records Access Officer Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Phelan: I have received the petition of Michael Meyers appealing the response of the Andover Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2023, Mr. Meyers requested “all responsive records between the school committee and the school superintendent related to the departure of [an identified individual]. Please include all settlement, non-disclosure and separation agreements of any kind between any of the above parties.” On August 25, 2023, the School responded. Unsatisfied with the School’s response, Mr. Meyers petitioned this office and this appeal, SPR23/2023, 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 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 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

Alison Phelan SPR23/2023 Page 2 September 11, 2023 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 August 25th Response In its August 25, 2023 response, the School states: As we are required to do in responding, we have conducted a search for any responsive records, including a search by the IT Department of the District server for emails. The search has yielded only two responsive records, consisting of emails on the afternoon of August 9, 2023 after [an identified individual] had provided notice. Both emails concern the content of a public release by the District about this matter. Because both emails involved District counsel and were sent in confidence to obtain legal advice, both are exempt from disclosure as public records. The Supervisor of Public Records has applied Suffolk Construction Co. v. Division of Capital Asset Management (Suffolk), 449 Mass. 444, 449-50 (2007) to apply a non-statutory exemption for records covered by the District’s attorney-client privilege. Accordingly, they are not being produced. 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). Based on the School’s response, it is unclear whether the School has waived the attorney-client privilege. In addition, where the School has not provided a privilege log with a detailed description of the record, including the names of the author and recipients, I find the School has not met its burden to withhold the responsive records under the attorney-client privilege.

Alison Phelan SPR23/2023 Page 3 September 11, 2023 Conclusion Accordingly, the School is ordered to provide Mr. Meyers with a response to his request 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 the response to this office at pre@sec.state.ma.us. Mr. Meyers may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Meyers