Tracy Compton v. Mount Greylock Regional School District (SPR 20253059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2025 SPR25/3059 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/2770 Determination of the Supervisor of Records (October 2, 2025). In my October 2nd determination, I found that the District did not meet its burden to withhold records under Exemption (d) of the Public Records Law, as well as the attorney-client privilege. The District responded on October 8, 2025. Unsatisfied with the District’s response, Ms. Compton petitioned this office and this appeal, 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 SPR25/3059 Page 2 October 31, 2025 SPR25/3059, 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 October 8th Response In its October 8, 2025 response, the District provided a privilege log identifying ten (10) records that it intends to withhold under the attorney-client privilege, and includes the dates, authors, recipients, and descriptions of the records, and the basis on which the privilege is being claimed. Additionally, the District withheld records responsive to Item 3 pursuant to the work- product doctrine as it operates through Exemption (d) of the Public Records Law and attorney- client privilege. Current Appeal In her October 20, 2025 petition to this office, Ms. Compton stated, “[t]he response below seems counter to what you instructed [the District] in the determination. I don’t have a lawyer and there is no active litigation in this matter. I kindly ask for you to review the below and determine if [the District] must turn over the drafts of the response as well as the emails as requested…” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions

Joseph Bergeron SPR25/3059 Page 3 October 31, 2025 being developed by the agency; but this subclause shall not apply to reasonably 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 October 8th response, the District stated, “[d]rafts of the Complaint Response were exchanged between [two identified individuals] on August 19-21, 2025…They reflect counsel’s mental impressions, analysis, and strategy, have not been disclosed outside the attorney-client relationship, and are protected under…the attorney work-product doctrine.” 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

Joseph Bergeron SPR25/3059 Page 4 October 31, 2025 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 October 8th response, the District provided a privilege log identifying ten (10) records that it intends to withhold under the attorney-client privilege, and includes the dates, authors, recipients, and descriptions of the records, and the basis on which the privilege is being claimed. Additionally, for Item 3, the District stated, “[d]rafts of the Complaint Response were exchanged between [two identified individuals] on August 19-21, 2025. These drafts were created in confidence for the purpose of obtaining legal advice in connection with a Public Records Section (PRS) complaint filed with a State agency. They reflect counsel’s mental impressions, analysis, and strategy, have not been disclosed outside the attorney-client relationship, and are protected under the attorney-client privilege and the attorney work-product doctrine.” Where the District has provided a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the authors and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the District has met its burden to withhold the ten (10) responsive records and the records responsive to Item 3 pursuant to the attorney-client privilege. Where I find that the District has met its burden to withhold the records under the attorney-client privilege, I decline to opine on the claim of Exemption (d) of the Public Records Law to withhold records responsive to Item 3. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Lincoln 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Tracy Compton