Commonwealth Transparency v. Lincoln, Town of -- Public Schools (SPR 20241144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1144 Parry Graham, Ed.D. Superintendent Lincoln Public Schools 6 Ballfield Road Lincoln, MA 01773 Dear Superintendent Graham: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of Lincoln 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 April 1, 2024, the requestor sought the following: … documents/records for your [School] for the time period March 10, 2024 through April 1, 2024: [1] Any and all communications with any person at Murphy, Hess, Toomey & Lehane which refer to public records and/or [the requestor; and] [2] Any and all communications with any person which refer to a public records request made to the [School] by [the requestor] on or about March 10, 2024. This request includes but is not limited to email, email-attachments, text messages, calendar entries, voice mail messages and/or physical documents. The School provided a response on April 16, 2024. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/1144, 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

Superintendent Parry Graham, Ed.D. SPR24/1144 Page 2 May 1, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. 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 16th response In its April 16, 2024 response, the School stated that records were withheld pursuant to attorney-client privilege. Current Appeal In the appeal, the requestor stated “[t]here is no quantification of responsive records, there is no specific claim of exemption to justify any charges for either segregation or redaction … [the requestor] requests that the [Public Records Division] find and order the [School] to search for provide all responsive records without delay and without charge.” Further, the requestor stated: “[the School] has failed to provide a privilege log for any and all responsive records for which they claim attorney-client privilege as required under Massachusetts Public Records Law M.G. L. c.66, §§ 10-10A….” 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

Superintendent Parry Graham, Ed.D. SPR24/1144 Page 3 May 1, 2024 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 April 16, 2024 response, the School states, that “[a]ny correspondence between the [School] and Murphy, Hess, Toomey & Lehane is presumptively privileged under the attorney-client privilege.” I find that the School has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. At 460. Specifically, the School must clarify that the communications were received from an attorney during the course of the School’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the School has not 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 April 16th response. Therefore, I find the School has not met its burden to withhold the records under the attorney-client privilege. Conclusion Accordingly, the School is ordered to provide the requestor with a response to the request, 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. The requestor may appeal the School’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency