Vicki Divoll v. Martha's Vineyard Public Schools (SPR 20240134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0134 Richard M. Smith Superintendent Martha’s Vineyard Public Schools 4 Pine Street Vineyard Haven, MA 02568 Dear Superintendent Smith: I have received the petition of Vicki Divoll appealing the response of the Martha’s Vineyard 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 November 7, 2023, Ms. Divoll requested “the written letter from counsel that was discussed at the November 6 meeting [of the Chilmark Finance Committee].” The School provided a response on November 20, 2023. Unsatisfied with the School’s response, Ms. Divoll petitioned this office and this appeal, SPR24/0134, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Richard M. Smith SPR24/0134 Page 2 January 29, 2024 The School’s November 20th response In its November 20, 2023 response, the School claims the attorney-client privilege to withhold the requested record. 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, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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). Citing attorney-client privilege, the School states the following: The Committee’s attorney provided the Committee with a written legal opinion by letter dated October 23, 2023. This letter was provided as confidential legal advice and the associated privilege has not been waived by vote of the Committee. As such, this letter constitutes an attorney-client privileged communication which is exempt from public disclosure under M.G.L. c. 4, § 7(26)(a). Although the School provides some information regarding the nature of this record, I find that the School must provide a detailed index to support its claims of privilege. See Suffolk, at 460. Specifically, in accordance with G. L. c. 66, § 10A(a), the School must provide “a detailed description of the record[s], 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.” Conclusion Accordingly, the School is ordered to provide Ms. Divoll with a response to the request,

Richard M. Smith SPR24/0134 Page 3 January 29, 2024 provided 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. Sincerely, Manza Arthur Supervisor of Records cc: Vicki Divoll