Kenneth M. Chiarello v. Swampscott, Town of - Public Schools (SPR 20241286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2024 SPR24/1286 Superintendent Pamela Angelakis Swampscott Public Schools School 207 Forest Avenue Swampscott, MA 01907 Dear Superintendent Angelakis: I have received the petition of Attorney Kenneth Chiarello appealing the response of the Swampscott 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 September 1, 2023, Attorney Chiarello requested various documentation relating to two named individuals and about the Swampscott High School Baseball Program. Prior Appeals and In Camera Review This request was the subject of prior appeals and a subsequent in camera inspection. See SPR23/2755 Determination of the Supervisor of Records (November 28, 2023); SPR24/0031 Determination of the Supervisor of Records (January 18, 2024); and SPR24/0625 Determination of the Supervisor of Records (March 13, 2024). In my March 13th determination, I found that the School had not satisfied the three-part test set out in the Suffolk case and that the School must clarify if additional records exist. Concurrently, I ordered the School to provide records for in camera review regarding the claims to Exemptions (a) and (c) of the Public Records Law. An in camera determination regarding that set of records was issued on April 16, 2024. See SPR24/0625 Determination of the Supervisor of Records (April 16, 2024). The School responded on March 27, 2024. Unsatisfied with the response, Attorney Chiarello petitioned this office and this appeal, SPR24/1286, 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 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 Pamela Angelakis SPR24/1286 Page 2 May 9, 2024 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). 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 March 27th Response In its March 27, 2024 response, the School reiterated the attorney-client privilege to redact responsive records. Current appeal In his appeal, Attorney Chiarello states: [the School] has not satisfied its burden that the redacted emails… are protected by the attorney client privilege. [The School] has not submitted a single affidavit to support its position that an attorney-client privilege existed at the time those emails were drafted and exchanged. [The School] has also failed to submit any precedent that supports its position that [the School] preserved and did not waive the attorney-client privilege to those emails… [The School] should be required to produce unredacted copies of the emails. 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 (2017); 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.

Superintendent Pamela Angelakis SPR24/1286 Page 3 May 9, 2024 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). In its prior response on February 1, 2024, the School provided a privilege log referencing several emails. In its March 27th response, the School stated the following: First, as stated in my previous response, “the School District has not received any complaints against the baseball coach since the season ended eight (8) months ago.” Through this response, I am confirming again that said statement is true to best of the School District’s knowledge. However, I was using the middle of June as the end of the season date, which is when the MIAA season ends. If [Attorney Chiarello is] referring to correspondence that was dated at the end of May/ beginning of June, then any related documents have either already been produced without redactions or are among the documents that are currently being reviewed by the Supervisor of Public Records “in-camera” for which the School District has previously made redactions or withheld under the exemption stated in those responses. To the best of my knowledge, there are no additional documents responsive to your request other than what has been already provided to you, as well as the Supervisor for their “in-camera” review. Second, in regard to the documents being withheld under Attorney-Client privilege in which the School District previously provided a privilege log, I can confirm that the communications were received from Swampscott School District and an agent thereof during the course of the School District’s search for legal advice from me as Counsel in my capacity as Counsel and that the communications were made in confidence and that the privilege as to these communications has not been waived. 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 confirmed “that the communications were received from Swampscott School District and an agent thereof during the course of the School District’s search for legal advice from [legal counsel]…” Further, the School has satisfied the requirement that the communications were made in confidence, because the School explained in its March 27th response that “the communications were made in confidence…”

Superintendent Pamela Angelakis SPR24/1286 Page 4 May 9, 2024 Finally, the School has satisfied the requirement that the privilege as to these communications has not been waived, because the School stated that “the privilege as to these communications has not been waived.” Also, 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 its February 1st privilege log. Therefore, I find the School has met its burden to redact records under the attorney-client privilege. No Duty to Create Records Please be advised, under the Public Records Law the School is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, 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). Conclusion Where the School has met its burden to redact records under the attorney-client privilege, and has confirmed that it does not possess additional records responsive to the request, I will now consider this administrative appeal closed. If Attorney Chiarello 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: Kenneth Chiarello, Esq. Darren Klein, Esq.