Baggett, Sean v. Hingham, Town of - Public Schools (SPR 20260711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2026 SPR26/0711 Kathryn M. Roberts Superintendent Hingham Public Schools 220 Central Street Hingham, MA 02043 Dear Ms. Roberts: I have received the petition of Sean Baggett appealing the response of the Hingham Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 1, 2025, for the period of “July 1, 2022 to the present,” Mr. Baggett requested: [1] Emails and Electronic Communications Please produce all emails, text messages, internal chat messages (Teams, Google Chat, or similar platforms), electronic messages, and any associated attachments or metadata that contain any of the following [ten] identifiers… [2] Internal Documents and Notes Please produce all internal memoranda, notes, meeting minutes, agendas, summaries, draft or final documents, calendar entries, or internal communications referencing [an identified individual] (or any identified listed above), or referencing or relating to MCAD Case No. 22NEM00334. [3] Complaints or Investigation Involving [an identified individual] Please provide any records of internal complaints, grievances, reports, employee concerns, or investigations that mention or involve [an identified individual] while employed by Hingham Public Schools. On December 5, 2025, the School provided a fee estimate of $183,785.30 to produce records responsive to Items 1 and 2 of the request, and cited Exemption (c) of the Public Records Law to withhold records responsive to Item 3. Mr. Baggett subsequently contested the fee estimate and stated that he was “willing to refine the request” as follows: 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

Kathryn M. Roberts SPR26/0711 Page 2 March 12, 2026 Moving forward, please exclude the following [five] identifiers contained in my 12/1 request… Other identifiers described in the original 12/1 request remain valid and in scope. The School provided further responses on December 18, 2025 and January 9, 2026. Previous Appeal This request was the subject of a previous appeal. See SPR26/0213 Determination of the Supervisor of Records (February 4, 2026). In my February 4th determination, I ordered the School to clarify its claims to redact the records responsive to Items 1 and 2 of the request under the attorney-client privilege. In addition, I ordered the School to clarify its claims to withhold records responsive to Item 3 under Exemption (c) of the Public Records Law, and to identify the records it withheld from disclosure. The School responded on March 1, 2026. Unsatisfied with the School’s response, Mr. Baggett petitioned this office and this appeal, SPR26/0711, 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 School’s March 1st Response In its March 1, 2026 response, the School expanded upon its attorney-client privilege claims to redact the records responsive to Items 1 and 2 of the request. In addition, the School stated, “the District would like to clarify its response to Request 3… [T]here are no documents in the possession or control of the Hingham Public Schools that are responsive to this request.”

Kathryn M. Roberts SPR26/0711 Page 3 March 12, 2026 Current Appeal In his appeal petition, Mr. Baggett stated, “the District’s response does not comply with the Supervisor’s order in several respects: no privilege log was provided, the privilege claims remain fundamentally flawed, and the District has reversed its position on Item 3 without explanation.” No Duty to Create Records Please be advised that under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Given that the School has confirmed that it possesses no records responsive to Item 3 of Mr. Baggett’s request, and this office has no authority to compel the School to create records, I find that this portion of the appeal is resolved. 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 grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its December 18, 2026 response regarding the redacted production of records responsive to Items 1 and 2 of the request, the School stated, “[a]ll redactions in these documents are based on attorney/client privilege.” In its January 9, 2026 response, the School added:

Kathryn M. Roberts SPR26/0711 Page 4 March 12, 2026 A privilege log… [is] not a requirement of the public records process. Rather, a public entity is required to identify the reason for the redaction (attorney/client privilege) and provide as much unredacted information as possible without jeopardizing that privilege. [The School] can confirm that a page by page review was conducted when redactions were made. Accordingly the [School] believes it has met its obligations with regard to that aspect of your request. In its March 1, 2026 response, the School stated: With regard to the communications that were produced and redacted, the parties to the communication and the dates were not redacted. The communications were between a Hingham Public School employee and their attorney. Based on my review of the communications, it appears that the employee was seeking legal advice from the attorney or was being provided advice in the redacted communications. There is no indication that the employee has waived privilege. Based on the School’s responses, it remains unclear how all of the redactions to the responsive records fall under the attorney-client privilege. Although the School has clarified that “the parties to the communication and the dates were not redacted,” the School must still provide a detailed description of the communications withheld under the attorney-client privilege, including the substance of such withheld communications, and the grounds upon which the attorney-client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). Further, although the School has clarified that the withheld communications were between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such, and states “[t]here is no indication that the employee has waived privilege,” the School must provide additional information regarding whether the communications were made in confidence. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Mr. Baggett 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. Baggett may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kathryn M. Roberts SPR26/0711 Page 5 March 12, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Sean Baggett Sarah C. Spatafore, Esq.