Tracy Compton v. Mt. Greylock Reg. School Dist. (SPR 20252770)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2025 SPR25/2770 Joseph Bergeron Interim Superintendent Mount Greylock Regional School District 1781 Cold Spring Road Williamstown, MA 01267 Dear Superintendent Bergeron: I have received the petition of Tracy Compton appealing the response of the Mount Greylock Regional 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 September 4, 2025, Ms. Compton requested: [C]opies of all records related to the district’s complaint response regarding DESE special education complaint number 14092 … not limited but including: [1] The complete complaint response submitted by Mount Greylock Regional School District. [2] All communications (internal and external) concerning the discussion, drafting, review, or approval of the complaint response. [3] All drafts of the complaint response. [4] Meeting notes and minutes, including notes kept by individual participants, related to preparation or discussion of the response. [5] A list of attendees for all meetings where the complaint or response was discussed. [6] Invoices, billing records, and itemized charges from attorneys, consultants, or other professional related to work on this complaint and its response. The District responded on September 12, 2025. Unsatisfied with the response, Ms. Compton petitioned this office and this appeal, SPR25/2770, 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 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

Joseph Bergeron SPR25/2770 Page 2 October 2, 2025 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 September 12th Response In its September 12, 2025 response, the District produced records responsive to Items 1 and 6 of the request and stated that there were no records responsive to Items 4 and 5 of the request. The District withheld records responsive to Items 2 and 3 pursuant to the attorney-client privilege and the work-product doctrine as it operates through Exemption (d) of the Public Records Law. Current Appeal In her September 17, 2025 petition to this office, Ms. Compton stated: My request sought [an identified individual’s] educational record for all communications related to the development of a response to [a specific special education complaint]. The agency denied access to these records, citing attorney client privilege … I am concerned that the district may have applied this exemption too broadly, potentially withholding non-privileged materials … I believe I am entitled to any non-exempt records responsive to my request. Ms. Compton did not appear to object to the withholding of records responsive to Item 3 of the request. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably

Joseph Bergeron SPR25/2770 Page 3 October 2, 2025 completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its September 12th response, the District stated: With respect to the referenced Complaint Response document (included as part of this response under Item #1), the discussion, drafting, review, and approval of that document were limited exclusively to [an identified individual] and District Counsel, [an identified individual]. Following a diligent search, the District has identified the following confidential email communications between [an identified individual] and District Counsel concerning the Complaint Response: July 30–31, 2025: Confidential email exchanges between [two identified individuals] undertaken for the purpose of obtaining and providing legal advice regarding the District’s preparation of the Complaint Response. August 5, 2025: Confidential email exchange between [two identified individuals] undertaken for the purpose of seeking and providing legal advice regarding procedural aspects of the Complaint Response. August 19–22, 2025: Confidential email exchanges between [two identified individuals] relating to the drafting and finalization of the Complaint Response, undertaken for the purpose of seeking and providing legal advice in connection with that submission.

Joseph Bergeron SPR25/2770 Page 4 October 2, 2025 These communications, together with any associated drafts, constitute attorney– client communications and attorney work product, and are therefore exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(d). In this case, the District has not met its burden to withhold the responsive records under Exemption (d). Specifically, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the District has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. Id. 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 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 September 12th response, I find that the District has not satisfied the requirements articulated in Suffolk. Specifically, the District must clarify with respect to each withheld communication whether the communication was made in confidence, and whether the privilege has not 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 Ms. Compton 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

Joseph Bergeron SPR25/2770 Page 5 October 2, 2025 pre@sec.state.ma.us. Ms. Compton 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: Tracy Compton