Nardizzi, Jess v. South Hadley, Town of - Public Schools (SPR 20260050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 21, 2026 SPR26/0050 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 SPR26/0050 Page 2 January 21, 2026 [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), SPR25/3053 Determinations of the Supervisor of Records (October 31, 2025, November 24, 2025, and November 25, 2025), and SPR25/3591 Determination of the Supervisor of Records (December 18, 2025). In my December 18th determination, I ordered the District to clarify whether the records of the District’s agents were searched. The District responded on January 2, 2026. Unsatisfied with the District’s response, Ms. Nardizzi petitioned this office and this appeal, SPR26/0050, 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 January 2nd Response In its January 2, 2026 response, the District’s Counsel argues the following: … In responding to your initial records request, the District had its technology department search all internal communications and documents held and maintained by the South Hadley Public Schools that complied with your initial request… The District’s files do not include information within my emails, since I am not an employee of the school and as such, did not include analysis relating to my email

Superintendent Jennifer Voyik SPR26/0050 Page 3 January 21, 2026 communications relating to MUP-25-11284 that is not in the direct possession of the District. However, with respect to my email communications, except those attached, such communications are exempt from disclosure through numerous exemptions. Specifically, exemption M. G. L. c. 4, § 7(26)(a) applies to records that are “specifically or by necessary implication exempted from disclosure by statute.” This includes the exemptions relating to attorney–client privilege and work product. My emails between MTA counsel fall under these exemptions. Although the Massachusetts Public Records Law is construed broadly in favor of disclosure, it is not absolute. The Supreme Judicial Court has repeatedly held that records falling within any exemption in G. L. c. 4, § 7(26) are not subject to disclosure, particularly where disclosure would frustrate core governmental or legal functions. See, General Electric Co. v. DEP, 429 Mass. 798, 801–02 (1999); Pottle v. School Comm. of Braintree, 395 Mass. 861, 864 (1985). Settlement communications between opposing counsel lie at the heart of such protected functions under the attorney work product doctrine. Communications exchanged during settlement negotiations such as offers, counteroffers, evaluations of risk, and/or strategic positioning directly reflect counsel’s mental impressions, legal analysis, and advice to their client. Such materials are opinion work product, which receives the highest level of protection under Massachusetts law. Opposing counsels enjoy the ability to engage in free communications in an effort to address legal concerns on behalf of their clients, and/or engage in privileged settlement communications in an effort to resolve disputes prior to the expense and resources required for litigation. Requiring disclosure of settlement communications would effectively expose privileged legal strategy and defeat the protections recognized under the law. Furthermore, the District also claims exemption G. L. c. 4, § 7(26)(d) which exempts: “inter-agency or intra-agency memoranda or letters relating to policy positions being developed.” Settlement communications are predecisional by definition. These communications are part of an ongoing legal process in which a public entity, through counsel, evaluates litigation risk, policy consequences, and overall exposure before deciding whether and on what terms to advise resolution of a case. Should such communications no longer be exempt from disclosure, the impact would be to disallow candid and strategic communications between opposing counsel on behalf of their clients. Such would have a chilling effect on the overall litigation and settlement process. DaRosa v. City of New Bedford, 471 Mass. 446, 30 N.E.3d 790 (2015) Docket No. SJC-11759. Massachusetts law strongly favors the settlement of disputes and there is long- standing Massachusetts public policy favoring confidential settlement negotiations[.] This policy is reflected in Mass. R. Evid. 408, which bars the use

Superintendent Jennifer Voyik SPR26/0050 Page 4 January 21, 2026 of settlement communications to prove liability, precisely because confidentiality is essential to candid negotiation. Based on all the above, the District continues to assert that any communications in the possession of District counsel between MTA counsel relating MUP-25-11284 falls under the above stated exemptions and are not subject to disclosure and release under the public records laws. Current Appeal In her January 5, 2026 appeal to this office, Ms. Nardizzi stated the following: [1] Agency Relationship and Improper Exclusion of Counsel’s Files…As the District’s designated labor counsel and the primary respondent to my records requests and appeals, Attorney Roche functions as an agent of the District. Excluding her case files and emails from the search constitutes a failure to meet the District’s statutory search obligations[;] [2] Overbroad Invocation of Exemption (a)… the District continues to assert attorney–client privilege and work product categorically, without a privilege log, record-specific analysis, or segregation of non-exempt material. This position is facially incompatible with the nature of the communications at issue and reflects a continued failure to engage meaningfully with the Supervisor’s instructions. [3] The “Resolved” versus “Ongoing” Contradiction (Exemption d)…The District cannot recharacterize a concluded matter as “ongoing deliberation” to justify withholding. DaRosa does not authorize post-decision reframing. Where the District has executed a settlement and issued a public “Notice to Employees,” any deliberative process has legally ended. [4] Personnel-Record Status under G.L. c. 149, § 52C…Under G.L. c. 149, § 52C, an employee is entitled to access documents that identify the employee and “may be used, have been used or are being used” to affect disciplinary action. The District’s current position withholds the very records relied upon to reach and publicly memorialize a disciplinary decision, which is fundamentally contrary to the purpose of G.L. c. 149, § 52C. [5] Misplaced Reliance on General Electric and Pottle…The District’s citation to General Electric Co. v. DEP and Pottle v. School Committee of Braintree does not support categorical withholding. The District suggests disclosure would frustrate “core functions”… [6] Inapplicability of Mass. R. Evid. 408… [7] Continued Noncompliance with the Supervisor’s Directives… Item 2(a) – Emails Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law

Superintendent Jennifer Voyik SPR26/0050 Page 5 January 21, 2026 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 Counsel argues, “[m]y emails between MTA counsel fall under these exemptions…[c]ommunications exchanged during settlement negotiations such as offers, counteroffers, evaluations of risk, and/or strategic positioning directly reflect counsel’s mental impressions, legal analysis, and advice to their client. Such materials are opinion work product, which receives the highest level of protection under Massachusetts law. Opposing counsels enjoy the ability to engage in free communications in an effort to address legal concerns on behalf of their clients, and/or engage in privileged settlement communications in an effort to resolve disputes prior to the expense and resources required for litigation. Requiring disclosure of settlement communications would effectively expose privileged legal strategy and defeat the protections recognized under the law.” Based upon the District’s response, it is unclear which specific records have been withheld pursuant to the attorney-client privilege. Specifically, the District must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney- client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the District must clarify whether the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. 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

Superintendent Jennifer Voyik SPR26/0050 Page 6 January 21, 2026 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. Based upon the District’s response, it is unclear which specific records have been withheld under Exemption (d). Specifically, the District must demonstrate that the withheld records are the type of “opinion” work product prepared in anticipation of litigation or for trial, as required by 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. See Id. The District must clarify these matters. 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 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Superintendent Jennifer Voyik SPR26/0050 Page 7 January 21, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Jess Nardizzi Kimberly M. Roche, Esq.