Vicki Divoll v. Martha's Vineyard Public Schools (SPR 20240509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0509 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].” Previous Appeal This request was the subject of a previous appeal. See SPR24/0134 Determination of the Supervisor of Records (January 29, 2024). In my January 29th determination, I found that the School did not meet its burden to withhold the record under the attorney-client privilege. The School provided a response on February 7, 2024. Unsatisfied with the School’s response, Ms. Divoll petitioned this office and this appeal, SPR24/0509, 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 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 SPR24/0509 Page 2 March 1, 2024 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). The School’s February 7th response In its February 7, 2024 response, the School claims the attorney-client privilege to withhold the requested record. On February 26, 2024, subsequent to the opening of this appeal, the School provided a further elaboration on the attorney-client privilege claim. Current Appeal In her appeal, Ms. Divoll states: Unlike legal opinions rendered to clients (public or private) under normal, and confidential, circumstances, this legal issue has been handled publicly in every way by Martha’s Vineyard Regional School District officials and high school committee members. Both Superintendent Smith and committee members spoke at length, and in open disagreement, at several public meetings about: (1) the legal question at issue and the island-wide controversy surrounding it; (2) the need to ask school counsel to advise on the question; (3) the receipt of counsels’ response letter and announcement of its “conclusion” on the question. Thus, everything about the legal guidance, as requested, received, and announced, was handled in a nonconfidential manner… Accordingly, I assert that the facts do not support treating as confidential the attorney communication at issue here. I further assert that, to the extent there may have been any confidentiality at any point, [a named individual] waived it when he announced his interpretation of the letter’s contents and conclusions, in the face of objections from committee members. On February 27, 2024, in response to the School’s February 26th email, Ms. Divoll stated, …[a]s I have stated previously in these appeals, everything about this controversy has been discussed and debated fiercely on the public record by committee members and the press, including selectively some, but not all, of the conclusions in the 10/23/23 letter itself…” 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

Richard M. Smith SPR24/0509 Page 3 March 1, 2024 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 in its February 7th response, the School states the following: The legal opinion was requested by vote of the Committee at its October 2, 2023 meeting, and this request was conveyed to [the School’s counsel] by Superintendent of Schools... [The School’s counsel] sent the legal opinion to [the Superintendent] by email at 12:07 pm on October 23, 2023, and [the Superintendent] then distributed the opinion to the members of the Committee. The legal opinion has been maintained confidentially among Committee members and central office administrators with a need to know the legal advice therein, and it has not been shared with third parties. The attorney-client privilege is held by the Committee, and at its November 8, 2023 meeting, the Committee, without sharing the specific contents of the legal opinion, took a vote on whether to release the opinion to the public. The vote failed, the privilege was not waived, and the Records Access Officer must withhold the opinion as it remains attorney- client privileged and exempt from disclosure Additionally, in its February 26th response, the School elaborates: The legal opinion was communicated directly between [counsel’s] office and [the School]… for the purposes of legal advice, was intended to be confidential, was sent in communications marked privileged, and has only been shared with members of the Committee and District administrators with a need to know. Neither the requester nor any other member of the public has at any time been privy to these communications, the Committee voted not to release the legal opinion, and the Superintendent has repeatedly declined to share its contents. In response to public requests for the legal opinion, [the School] has provided the requester with thorough responses explaining the applicability of the public records law exemptions and detailing all of the information listed in M.G.L. c.66

Richard M. Smith SPR24/0509 Page 4 March 1, 2024 § 10A(a) for purposes of asserting the attorney-client privilege. The Committee is the holder of [the School]’s privilege, and it acts in that regard only by vote of a quorum of its members. No individual, including without limitation the Superintendent/Records Access Officer, the Committee’s legal counsel, or an individual Committee member, has the authority to waive this privilege absent a vote to that effect by the Committee. That is particularly true where, as here, the Committee has specifically considered the issue and voted not to waive the privilege. For any of these individuals to then release this opinion in opposition to the Committee’s express determination would violate the fiduciary duty we each owe to [the School]… With respect to the requester’s arguments regarding confidentiality, the existence of a communication, the date or time the advice is sought, who is seeking it and receiving it, and the general nature and substance of the record is all information that a public entity may be required to release publicly to explain the grounds for asserting the privilege under [the attorney-client privilege]. A public discussion of these details, including without limitation the Committee’s acknowledgment of receipt of a legal opinion on an issue and any discussion by the Committee’s deliberation pursuant to the Open Meeting Law of a topic for which it has received a legal opinion make all related advice or other privileged communications public; such an interpretation would effectively eliminate the attorney-client privilege for public bodies, which would be directly contrary to the holding of the Massachusetts Supreme Judicial Court in Suffolk… Upon review, the School has satisfied the requirement 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, because the School explained that “[t]he legal opinion was communicated directly between [counsel’s] office and [the School]… for the purposes of legal advice[.]” Further, the School also asserted that, “[t]he legal opinion has been maintained confidentially among Committee members and central office administrators with a need to know...” Further, the School has satisfied the requirement that the communications were made in confidence, because the School explained that the communication “was intended to be confidential, was sent in communications marked privileged, and has only been shared with members of the Committee and District administrators with a need to know.” Finally, the School has satisfied the requirement that the privilege as to these communications has not been waived, because “[t]he legal opinion has been maintained confidentially among Committee members and central office administrators with a need to know the legal advice therein, and it has not been shared with third parties.” Further, the School explains that “the Committee… took a vote on whether to release the opinion to the public” and “voted not to waive the privilege.”

Richard M. Smith SPR24/0509 Page 5 March 1, 2024 Additionally, the School has provided 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 in their February 7th response. Therefore, I find the School has met its burden to withhold the record under the attorney- client privilege. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Divoll 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Vicki Divoll