Plaisance, Michael v. Holyoke, City of - City Clerk (SPR 20140366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 20, 2014 SPR14/366 Ms. Kara Lamb Cunha, Esq. 2nd Assistant City Solicitor 20 Koreans Veterans Plaza, Room 204 Holyoke Ma, 01040-5000 Dear Attorney Cunha: I have received the petition of Michael Plaisance from the Republican and MassLive.com, appealing the response of the City of Holyoke (City) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Plaisance requested copies of records "that led up to and that formalized" a separation agreement entered into between the City and its former City Solicitor. In its response the City provided records redacted to the personnel exemption to the Public Records Law as well as the common law attorney-client exemption. The City withheld other records in their entirety, citing the same exemptions. In a footnote the City also states in its response that it is bound by the terms of the "Separation Agreement" from disclosing certain withheld records. Attorney-Client Privilege The City withheld communications between its mayor and his legal counsel and redacted portions of responsive invoices for legal services pursuant to the common law attorney-client privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for the purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Commissioner of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614-615 (1993). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Kara Lamb Cunha, Esq. SPR14/366 Page Two August 20, 2014 The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93, (1831 ). Whereas the Town is permitted to withhold records, or portions thereof, under a claim of attorney-client privilege in a manner consistent with the ruling in Suffolk, I will consider this portion of the appeal closed. Exemption (c) The City contends that all the emails between the Mayor and the former City Solicitor are exempt from disclosure pursuant to the first clause of Exemption (c) of the Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. In its response the City classified those withheld records as personnel records. I find the City has met its burden with respect to portions of the responsive records containing personnel information. Separation Agreement In your letter, the City states that it is bound by the terms of the "Separation Agreement" from disclosing any specific details of such information. Please be advised that no government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Ms. Health and Human Services, 690 F.2d 252, 263 (D.C. Cir. 1982); see also Galvin v. Mass.

Kara Lamb Cunha, Esq. SPR14/366 Page Three August 20, 2014 Mut. Life Ins. Co., 20 Mass. L. Rep. 533, 28 (2006) (a public employee has no authority to override, by means of a promise of confidentiality, the General Court's determination that any document "made or received" by a public employee shall be available to the public unless one of the legislatively enacted exemptions applies). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom oflnformation Act with a private agreement). Therefore, a confidentiality clause cannot be used to circumvent the mandatory disclosure provision of the Public Records Law. Accordingly, the City is hereby ordered, within ten (10) days ofthis order, to provide Mr. Plaisance with any remaining portions of the withheld records not covered by the above referenced statutory and common law exemptions, or provide to Mr. Plaisance and this office, with specificity, how a particular exemption applies to each remaining record. If the City is planning to charge for the cost of complying with this public records request, Mr. Plaisance must be provided with a detailed written, good faith estimate on each particular request. Once the City receives the estimate funds, the records must be provided. This administrative appeal is closed. Supervisor of Records cc: Mr. Plaisance