Canizales, Mike v. Provincetown, Town of (SPR 20140703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division February 19, 2015 Shawn A. Williams Director SPR14/703 Ms. Michele Randazzo, Esq. Kopelman and Paige, P.C. 101 Arch Street Boston MA, 02110 Dear Attorney Randazzo: I have received the petition of Mike Carrizales appealing the response of the Town of Provincetown (Town) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Carrizales requested copies of certain emails and attachments that were withheld from a prior public records request. In your response, made on behalf of the Town, you provided certain responsive records, waiving any applicable fees. Other records were withheld or redacted. G. L. c. 4, § 7(26) (a), (c), (d), and (f); G. L. c 214, §1b; Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444, 449-450 (2007). The Town offered to provide copies of responsive records in electronic form. The Town's response was detailed, and included an index of records to support its exemption claims. "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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The statutory exemptions are strictly and narrowly construed. Globe Newspaper Co. v. Dist. Att'y for the Middle Dist., 439 Mass. 374, 380 (2003); Att'y Gen. v. Ass't Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). 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 ( c); See also Dist. Att'y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 ( c) (emphasis added). Attorney client privilege In your response you indicated the Town's intent to withhold certain responsive emails pursuant to a claim of a 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 purpose of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Michele Randazzo, Esq. SPR14/703 Page Two February 19,2015 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). 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). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Ibid. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: ( 1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter ofthe Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997). The Court found that a records custodian must provide a privilege index to withhold records under the common law attorney client privilege. The Town produced a privilege log as well as a detailed explanation to support its withholding claim. I find that your letter satisfies the requirements of both the Public Records Law as well as the Court's findings in Suffolk. Exemption (c) In your letter, you indicated its intent to withhold the records pursuant to Exemption (c) ofthe 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

Ms. Michele Randazzo, Esq. SPR14/703 Page Three February 19, 2015 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, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). The Supreme Judicial Court also has defined personnel information as 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. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 3 80 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. I find your letter satisfies the Town's burden of specificity for such withholding of personnel information pursuant to the first clause of Exemption (c) of the Public Records Law. I find your letter also satisfies the Town's burden of specificity for withholding of information

Ms. Michele Randazzo, Esq. SPR14/703 Page Four February 19,2015 related to personal associations pursuant to the second clause of Exemption (c). Accordingly, the Town is permitted to redact portions of the records related to personnel and personal association issues. All non-exempt portions are presumed to be public records. I decline to opine upon the applicability of the right to privacy statute to this portion of the responsive records. Exemption (d) In your letter, you contend that portions of the requested records ought to be withheld from disclosure pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to: 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 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. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230,237 n.8 (1988). You explain that certain responsive emails concern subjects of disputes in active litigation. The Superior Court has held that "records concerning ongoing litigation fall within [E]xemption (d)." Lafferty v. Martha's Vineyard Comm'n, 17 Mass. L. Rep. 501 (Mass. Super. 2004). It is, therefore, the finding of this office that the Town is acting within its discretion in withholding the responsive records related to active litigation from disclosure pursuant to Exemption (d) ofthe Public Records Law. Exemption (f) In your letter you explained that the Town is withholding portions of certain records pursuant to Exemption (f) ofthe Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f)

Ms. Michele Randazzo, Esq. SPR14/703 Page Five February 19,2015 In your letter you explained that the Town intends to withhold certain information which may directly or indirectly identify voluntary complainants. The exemption is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. I find your letter satisfies the Town's burden of specificity for such withholding pursuant to Exemption (f) of the Public Records Law. Whereas the Town has met its burden of specificity under the Public Records Law in redacting and withholding records by citing, with specificity, he exemptions claimed along with an explanation as to the applicability of these exemptions, I ill consider this administrative II ~~~~. I 'OUrs, cc: Mr. Michael Canizales