Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20241550)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2024 SPR24/1550 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the Malden Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2024, the requestor sought “[a]ll communications, documents, and records which contain any of the following text,” and provided a list of search terms. Previous Appeals This request was the subject of previous appeals. See SPR24/1312 Determination of the Supervisor of Records (May 3, 2024) and SPR24/1314 Determination of the Supervisor of Records (May 13, 2024). In my May 13th determination, I ordered the School to provide the requestor with a response to the request. On May 20, 2024, the School responded to the request. Unsatisfied with the School’s response, the requestor appealed, and this case, SPR24/1550, was opened as a result. While this appeal was pending, the School provided a supplemental response on May 28, 2024. 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 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

Shirley Dorai SPR24/1550 Page 2 June 5, 2024 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 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. Current Appeal In the appeal petition, the requestor contends the following: Malden failed to provide attachments to responsive emails. Malden failed to provide metadata for responsive emails as specifically requested. OpenCommonwealth is aware of and in possession of other responsive records (including emails) which are omitted from the response/responsive documents. Malden has again failed to provide all responsive documents. Retrieving the responsive as provided documents requires the requester to login to a system to retrieve responsive records, this is inconsistent with Massachusetts Public Records Law, Malden must provide a privilege log for ALL attorney-client claimed responsive documents, they have failed to provide same. Malden claims that letters on letterhead is attorney-client privileged, this appears inconsistent with their withholding/redactions. Malden has redacted the entirety of several documents, which appears inconsistent with the only privilege claimed; Attorney- client privilege. The School’s May 20th and May 28th Responses In its May 20, 2024 response, the School provided numerous responsive records. The School also stated it redacted some records pursuant to the attorney-client privilege. In an email to this office and the requestor on May 28, 2024, the School reiterated its claims under the attorney-client privilege, and confirmed it does not possess additional records responsive to the request. Records in Existence; Possession, Custody, or Control Please be advised that 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research,

Shirley Dorai SPR24/1550 Page 3 June 5, 2024 or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In its May 28th response, the School confirmed it “conducted a search of its records system using the search terms provided in the Request and provided all records responsive to the search in its follow-up response. The District has not withheld any records and is unaware of any other records responsive to the Request.” Where the School has confirmed that it provided all responsive records in its custody, I find that this portion of the requestor’s appeal is resolved. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. The indices shall include 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). 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 May 20th response, the School stated, “[t]he emails contained the content of discussions between the District and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney‐client privilege.” In its May 28th response, the School further explains the following:

Shirley Dorai SPR24/1550 Page 4 June 5, 2024 [T]he District’s redactions made pursuant to the attorney-client privilege are consistent with the Public Records Law. The District redacted the substance of attorney-client privileged emails as well as edits made by the District’s attorneys on documents attached to responsive emails which would show legal advice provided to the District. However, the date, sender, recipient, and subject information on each of the emails with redactions and emails with redacted documents attached remain intact, which together constitutes a privilege log under the Public Records Law. See SPR22/2675. Based on the School’s May 28th response, it is my understanding that the School complied with the requirements for redacting the records under the attorney-client privilege. Specifically, although the texts of the communications were redacted, the School left intact the email header information which included the names of the author and recipient(s), the date and subject of each email. Between the records produced, and the School’s May 20th and May 28th responses, I find the School has met its burden to redact the responsive records pursuant to the attorney-client privilege. Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor 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: Open Commonwealth