Jess Nardizzi v. South Hadley, Town of - Public Schools (SPR 20253591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2025 SPR25/3591 Jennifer Voyik Superintendent of Schools South Hadley Public School District 116 Main Street South Hadley, MA 01075 Dear Superintendent Voyik: I have received the petition of Jess Nardizzi appealing the response of the South Hadley 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 September 6, 2025, Ms. Nardizzi sought the following records: [1] Unfair Labor Practice (ULP) Cases – from 2025 through the present day (9/6/2025). Including but not limited to: [a] Copies of all settlement agreements between the District and the Department of Labor Relations (DLR) or internal agreements between the District and SHEA that were not reported to DLR[;] [b] Copies of the District’s responses in each case[;] [c] Copies of any notices posted as part of those settlements, including the wording of the notices and documentation of the locations where they were posted. [2] Documentation for ULP Case #MUP-25-11284[,] [i]ncluding but not limited to: [a] Copies of all email communications between the District, its representatives, and involved parties (including union representatives, legal counsel, members of the School Committee, and the DLR regarding scheduling of meetings, or emails directly related to the case that contain [an identified individual], or the position title, Middle School Assistant Principal, 2024-2025[;] [b] Direct evidence and information relating to the alleged charge of “the Middle School Assistant Principal’s request that the Union President be disciplined for her advocacy on behalf of her members[;] 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

Superintendent Jennifer Voyik SPR25/3591 Page 2 December 18, 2025 [c] Attendance records or notes indicating who was present at any settlement meetings. Previous Appeals, in camera review and reconsideration This request was the subject of previous appeals, an in camera review, and a reconsideration. See SPR25/2787 Determination of the Supervisor of Records (October 2, 2025) and SPR25/3053 Determinations of the Supervisor of Records (October 31, 2025, November 24, 2025, and November 25, 2025). In my November 24th determination, I ordered the District to clarify how an attorney-client relationship exists between the District and the MTA Counsel. The District responded on December 4, 2025. Unsatisfied with the District’s response, Ms. Nardizzi petitioned this office and this appeal, SPR25/3591, 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. See 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. See 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 December 4th Response In its December 4, 2025 response, the District argues the following: … The first point of clarification I would like to provide is that your Public Records Request was made to the South Hadley Public Schools. As such, the log of communications provided to you contains communications in the possession of the South Hadley Public Schools relating to your request. The emails between the District Counsel and the MTA Counsel did not include the South Hadley Public Schools as a recipient and therefore are not responsive to your public records request. As private counsel, I am not an employee of the

Superintendent Jennifer Voyik SPR25/3591 Page 3 December 18, 2025 government entity, and since the emails in question were not sent by or to my client, they were not made or received by a government entity. See M.G.L. c. 4, § 7(26). Therefore, they are inapplicable to your public records request. However, with regards to any emails between District Counsel and MTA Counsel that were specifically forwarded to the South Hadley Public Schools by District Counsel, those particular emails contained attorney client communications to the South Hadley Public Schools when forwarded because the email contained specific legal advice and/or guidance from District Counsel in the emails to the School. Furthermore, the forwarded messages between the attorneys were directly relating to confidential settlement discussions. As such, the District continues to maintain that the communications listed in the District’s communication log should remain withheld from your public records request. Current Appeal In her December 4, 2025 appeal to this office, Ms. Nardizzi stated the following: In her October 30, 2025, letter to my attorney (attached), Attorney Roche states “I am labor counsel for the South Hadley Public Schools,” and indicates she is communicating a denial on behalf of “The School Committee.” In this matter, she is both “district counsel” and the attorney signing on behalf of the District. These are the actions of an agent acting as a public governmental entity. Under M.G.L. c. 4, § 7(26), records created or received by an agent acting for the District are public records. Counsel cannot claim governmental authority when issuing denials and asserting privilege, yet call herself “private” when asked to produce records. Since September, Attorney Roche, not the Superintendent, has been: [1] Responding to my records requests; [2] Asserting exemptions[;] [3] Describing or logging withheld material; and[;] [4] Communicating the District’s positions to your office. A person carrying out those duties is acting for the governmental entity and cannot selectively invoke “private” status to avoid disclosure. On December 4, 2025, counsel produced a DLR Notice of Investigation Conference dated June 12, 2025. This was shared several months after my original request, and per Attorney Roche’s assertion, only after having had contact with my attorney. Yet, it would appear that this document is plainly responsive to my September 3rd request… The District is withholding entire email exchanges involving:

Superintendent Jennifer Voyik SPR25/3591 Page 4 December 18, 2025 [1] Attorney Roche in her role as district counsel; [2] MTA/SHEA counsel; and[;] [3] Superintendent Voyik. These are not classic, internal attorney-client communications confined to a single client. Forwarding or attaching a non-privileged third-party email does not create privilege in the underlying third-party content. At most, narrow redactions of genuine legal advice may apply, not categorical withholding of entire threads… To ensure compliance with the Public Records Law, I specifically request the release of all emails in the District’s possession involving: [1] Attorney Roche (acting as district counsel); [2] MTA/SHEA counsel; and[;] [3] Superintendent Voyik[.] [R]elating to my original records request, scheduling of the investigation, and the alleged “mutual agreement.” Item 2(a) – Emails Agency Relationship; Possession, Custody, and Control 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. Sch. Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the District’s responses, where Attorney Roche appears to be acting on behalf of the District, it is unclear whether an agency relationship exists between the District and Attorney Roche. Consequently, it remains unclear whether the records for the District’s agents were searched. The District must provide additional information detailing its search in order to determine if the District has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request.

Superintendent Jennifer Voyik SPR25/3591 Page 5 December 18, 2025 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, 450 n.9 (2007); 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 ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Citing attorney-client privilege, the District argues, “with regards to any emails between District Counsel and MTA Counsel that were specifically forwarded to the South Hadley Public Schools by District Counsel, those particular emails contained attorney client communications to the South Hadley Public Schools when forwarded because the email contained specific legal advice and/or guidance from District Counsel in the emails to the School. Furthermore, the forwarded messages between the attorneys were directly relating to confidential settlement discussions.” Upon review, the District has satisfied the requirement that the communications were received during the course of the District’s search for legal advice from the attorney in his or her capacity as such. Further, the District has satisfied the requirement that the communications were made in confidence and the requirement that the privilege as to these communications has not been waived, because the District stated that the emails “were specifically forwarded to the [District] by District Counsel, those particular emails contained attorney client communications to the [District] when forwarded because the email contained specific legal advice and/or guidance from District Counsel in the emails to the [District]…” Therefore, I find the District has met its burden to withhold records responsive to the September 6th request under the attorney- client privilege. Conclusion Accordingly, the District is ordered to provide Ms. Nardizzi 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

Superintendent Jennifer Voyik SPR25/3591 Page 6 December 18, 2025 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: Jess Nardizzi Kimberly M. Roche, Esq.