Erin McCarthy v. Pioneer Valley Chinese Immersion Charter School (SPR 20251624)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2025 SPR25/1624 Kathleen Wang Principal Pioneer Valley Chinese Immersion Charter School 317 Russell Street Hadley, MA 01035 Dear Principal Wang: I have received the petition of Erin McCarthy appealing the response of the Pioneer Valley Chinese Immersion Charter School (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 14, 2025, Ms. McCarthy requested the following: [A]ll PVCICS Board and PVCICS Board Trusteeship Committee emails related to this year’s process of adding new members to the board, including, but not limited to: [1] Emails regarding putting out the call for board member applications and the posting of ads[;] [2] [T]he receipt by the Board and Trusteeship Committee of these applications[;] [3] Any correspondence between PVCICS Board members and the applicants this year[;] [4] Any correspondence between the Board and/or Trusteeship Committee and [an identified] Executive Director . . . , as he collected the applications[;] [5] Any correspondence related this overall process in 2025, including after the Trusteeship Committee's meetings in April and the May 1 Board meeting[.] The School responded on May 29, 2025. Unsatisfied with the School’s response, Ms. McCarthy petitioned this office and this appeal, SPR25/1624, was opened as a result. Subsequent to the opening of this appeal, the School provided a supplemental response on June 18, 2025, and Ms. McCarthy further appealed this response. 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

Kathleen Wang SPR25/1624 Page 2 June 23, 2025 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. 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. The School’s May 29th and June 18th Responses In its May 29, 2025 response, the School provided Ms. McCarthy with numerous redacted records and stated, “[p]lease note that all emails exempt from disclosure under the attorney-client privilege exemption have been redacted. Additionally, one email pertaining to scheduling contains a redaction due to highly sensitive medical information.” In its June 18, 2025 supplemental response, the School provided numerous additional responsive emails with redactions and stated the following: In your appeal you indicate that you believe there are more emails responsive to your request for emails with Board members regarding the election/nomination process for trustees. Please be aware that I have reached out to each of the trustees. [Six identified trustees] . . . have all confirmed they are not in possession of additional emails responsive to your request outside of copies of emails you have already received. [Three additionally identified trustees] provided me with emails, some of which may be duplicative, but I am attaching them all to this correspondence. Regarding the portion of Ms. McCarthy’s appeal in which she indicates, “some emails irrelevant to my request appear to have been included, which makes me wonder if the incorrect files were attached and other files are missing[,]” the School additionally advises: . . . if you are questioning the emails about the meeting minutes, [an identified individual] was a nominee to the Board while also was someone assisting the

Kathleen Wang SPR25/1624 Page 3 June 23, 2025 Board in meeting minutes. Your request included “[a]ny correspondence between PVCICS Board members and the applicants this year”. As such, since the nominee was emailing with another Board member, even though the content was not relating to the nomination process, those emails were provided as requested. The School additionally states in its June 18th response, “[w]ith respect to the redactions, we are affirmatively asserting that all emails exempt from disclosure under the attorney-client privilege exemption were redacted.” Current Appeal In her appeal, Ms. McCarthy asserts that the School possesses additional responsive records and states, “. . . some of the emails provided have attachments, but those attachments were not included in the records provided. As they are part of the emails, those should have been included.” She additionally states, “[f]or the redacted records that cite attorney-client privilege, I’d request that the [School] . . . 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. Upon review of the appeal, it appears Ms. McCarthy is not objecting to the redactions the School indicated that it made to one responsive record provided in its May 29th response described above “due to highly sensitive medical information.” 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. 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).

Kathleen Wang SPR25/1624 Page 4 June 23, 2025 Burden of Specificity; Records in Existence The School’s responses did not contain the specificity required in a denial of access to public records. Please be advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is additionally uncertain why the records must be withheld in their entirety. Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, based on the information provided in Ms. McCarthy’s appeal petition, it is unclear if the School possesses additional responsive records. If the School does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Ms. McCarthy with a response to her 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. Sincerely, Manza Arthur Supervisor of Records cc: Erin McCarthy Kimberly Roche, Esq.