Michael Pacy v. Shrewsbury, Town of - Public Schools (SPR 20252226)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2025 SPR25/2226 Chris Girardi Records Access Officer Shrewsbury Public School District 100 Maple Avenue Shrewsbury, MA 01545 Dear Mr. Girardi: I have received the petition of Michael Pacy appealing the response of the Shrewsbury 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 July 8, 2025, Mr. Pacy requested: [1] [A]ll the Individual Survey submission of all respondents with the date and time stamp on each individual submission for the Parent/Community and District Staff for Question 2: Quality of Communicaiton [sic] and Question 3: Quality of Leadership … [2] [A]ll communication (March 1, 2025 - Present day) and materials from [an identified individual] regarding the Work of the Superintendent Survey, this includes but not limited to emails, text messages, remote meetings with the school committee, any and all district school employees, legal counsel and any internal communications/memos to all school district employees and any school committee executive sessions, meeting notes, agendas and emails. The District responded on July 18, 2025. Unsatisfied with the response, Mr. Pacy petitioned this office and this appeal, SPR25/2226, 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

Chris Girardi SPR25/2226 Page 2 August 6, 2025 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 July 18th Response In its July 18, 2025 response, the District provided Mr. Pacy with records responsive to his request. The District withheld three responsive text messages in their entirety and produced redacted communications responsive to Item 2 pursuant to the attorney-client privilege. Current Appeal In his July 29, 2025 petition to this office, Mr. Pacy objected to the District’s redaction and withholding of responsive records pursuant to the attorney-client privilege. Mr. Pacy further contended that the District possessed additional communications relating to the Superintendent Survey and executive session discussions thereof. Based on Mr. Pacy’s petition and the District’s response, it is unclear whether the District possesses additional records responsive to the request. Specifically, it is unclear whether the District possesses records of the kind Mr. Pacy describes in his 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

Chris Girardi SPR25/2226 Page 3 August 6, 2025 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). Based on the District’s July 18th 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 or withheld 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 Mr. Pacy 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. Mr. Pacy 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: Michael Pacy