Molly Rockwood v. Hingham, Town of - Public Schools (SPR 20250933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 15, 2025 SPR25/0933 Kathryn Roberts Superintendent Hingham Public School District 220 Central Street Hingham, MA 02150 Dear Superintendent Roberts: I have received the petition of Molly Rockwood, Esq., of Clifford & Kenny, LLP, appealing the response of the Hingham Public School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 19, 2024, Attorney Rockwood requested the following records regarding an incident that occurred on June 17, 2024: [1] Any and all investigation report(s) including draft report(s) and recommendations; [2] Any and all witness statements; [3] A copy of the investigator’s notes; [4] Any and all written correspondence including but not limited to emails and text messages related to this incident and the investigation performed by the District into the event; [5] Any and all written correspondence including but not limited to emails and text messages with the certified union representative regarding the June 17, 2024 incident. Prior Appeals This request was the subject of prior appeals. See SPR25/0343 Determination of the Supervisor of Records (February 14, 2025), SPR25/0623 Determination of the Supervisor of Records (March 13, 2025), and SPR25/0735 Determination of the Supervisor of Records (March 26, 2025). In my March 26th determination, I found that Attorney Rockwood had paid the fee assessed by the District to provide responsive records, and ordered the District to provide Attorney Rockwood with records responsive to Items 4 and 5 of the request. 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

Kathryn Roberts SPR25/0933 Page 2 April 15, 2025 The District provided a response on March 26, 2025. Unsatisfied with the response, Attorney Rockwood petitioned this office and this appeal, SPR25/0933, 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(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 District’s March 26th Response In its March 26, 2025 response, the District provided Attorney Rockwood with responsive records, redacted pursuant to Exemption (c) of the Public Records Law. The District further stated that “[r]edactions were also made to protect attorney-client privilege.” Current Appeal In her April 4, 2025 petition to this office, Attorney Rockwood stated: It should be noted that in its initial response dated January 7, 2025, the District stated their search “yielded 300 pages of potentially responsive documents” and gave an estimated fee of $200.00 (for ten hours) which was later reduced to $100.00 (for six hours). The March 26, 2025 response contained 202 pages, however the vast majority of these records are duplicates and only approximately 6 email chains were produced totaling approximately 22 pages. Additionally, every other page the District provided, 101 in total, is blank … Although redacted, the first page of the records response coupled with the entire email chain clearly indicates five (5) witnesses in their investigation, as well two (2) potential others. However, the documents provided include only two email

Kathryn Roberts SPR25/0933 Page 3 April 15, 2025 chains that involved communications from the District to individuals setting up interviews. Pages 41-157 and 161-175, although redacted, are all a single email chain with the victim in the incident, [an identified individual]. I have attached the unredacted copies to indicate this more clearly. To reiterate, the District has only provided records of communications with [an identified individual] and one other individual, when their records (pg. 1) have indicated the investigation included at least three (3) other witnesses. In addition, no written correspondence regarding the results of the investigation were produced. As well, in its initial response to this public records request when it requested an estimated fee payment, the District indicated that there are responsive records regarding written correspondence with the certified union representative. However, no such records were produced. In addition, the District’s March 26, 2025 response cites “[R]edactions were also made to protect attorney-client privilege.” But there is no evidence of any attorney-client relationship in any of the produced records. Attorney Rockwood did not object to the District’s redactions pursuant to Exemption (c) of the Public Records Law. Based on Attorney Rockwood’s petition and the District’s response, it is unclear whether the District possesses additional records responsive to Items 4 and 5 of the request. Specifically, the District must clarify whether it possesses records of the kind Attorney Rockwood describes in her appeal petition. 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). The District must clarify this matter. 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 (2007); 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. 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

Kathryn Roberts SPR25/0933 Page 4 April 15, 2025 date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Based on the District’s March 26th response, I find that the District has not satisfied the requirements articulated in Suffolk. Specifically, the District must clarify the following with respect to each of the communications it has redacted under the attorney-client privilege: whether the communication was between the District and its attorney in the attorney’s capacity as such, whether the communication was made in confidence, and whether the privilege has been waived. The District must also provide a privilege log which includes 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, as required by G. L. c. 66, § 10A(a). Conclusion Accordingly, the District is ordered to provide Attorney Rockwood 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. Attorney Rockwood may appeal the substantive nature of the District’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Molly Rockwood, Esq.