Labriola, Joseph v. Executive Office of Public Safety & Security (SPR 20150210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 31, 2015 SPRlS/210 Ms. Shannon C. Hickey, Esq. Executive Office of Public Safety & Security One Ashburton Place, Room 2133 Boston, MA 02108 Dear Attorney Hickey: This office has received a petition from Joseph Labriola appealing the response of the Executive Office of Public Safety & Security (EOPSS) to his request for public records. See G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(6). Specifically, Mr. Labriola requested copies of two categories of records. In the first request Mr. Labriola requested records related to the death of a specifically identified individual. You provided records in response to this request, explaining to Mr. Labriola that additional records may be available directly from the Department of Correction. In his second request, Mr. Labriola requested records relating to the departure of the former Department of Correction Commissioner. This second request is the subject of this Determination. These requests were the subject of a previous appeal. See SPR14/527 Determinations of the Supervisor of Records (November 12, 2014, December 11, 2014). In my Determination dated November 12, 2014 I ordered EOPSS to provide a custodial index should it determine any portions of the responsive records are exempt from disclosure. As a result of this Determination, you provided a response to Mr. Labriola dated November 17, 2014 which contained an explanation ofEOPSS's exemption claims but did not include a custodial index. In my Determination dated December 11, 2014, I found that while your November 17, 20 14 response provided details to support your denial of records, I also found you failed to comply with my previous Determination because you did not provide the custodial index. Accordingly, I ordered EOPSS to provide a custodial index to Mr. Labriola consistent with the Public Records Access Regulations (Regulations) and applicable case law. As a result of this Determination, you provided Mr. Labriola with a response dated February 24, 2015. In this response, the EOPSS claims the responsive records may be withheld OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Shannon C. Hickey, Esq. SPR15/210 Page Two July 31, 2015 in their entirety pursuant to Exemption (c) ofthe Public Records Law as well as the attorney client privilege. This response also contains a custodial index. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 5 07, 511 ( 199 5) (custodian has the burden of establishing the applicability of an exemption). 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); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (c) Exemption (c) permits the withholding of: 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. Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The records custodian's classification of materials as "personnel information" is not conclusive. Wakefield Teacher's Ass'n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002). The Supreme Judicial Court of Massachusetts has found that a records custodian may

Ms. Shannon C. Hickey, Esq. SPR15/210 Page Three July 31, 2015 withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield, 431 Mass. at 798. In your response dated February 24, 2015, you claim the responsive records are exempt from disclosure as personnel records under Exemption (c). The custodial index describes several documents as relating to the Commissioner's resignation. I find the EOPSS properly withheld any document described in the custodial index as relating to resignation under the first clause of Exemption (c). You also cite Exemption (a) and explain that some ofthe responsive records may be withheld under the attorney-client privilege. However, the EOPSS did not meet its burden in proving the attorney-client privilege applies to the responsive records. See Suffolk Constr. Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 460 (2008). For records other than those described as relating to resignation (hereinafter "remaining records"), the EOPSS did not meet the requirements for providing a custodial index as described in the Regulations. The requirements are the following: (a) the index shall be contained in one document, complete in itself; (b) the index must adequately describe each withheld record or deletion from a released record; (c) the index must state the exemption or exemptions claimed for each withheld record or each deletion of a record; and, (d) the descriptions ofthe withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Nothing in 950 C.M.R. 32.08 shall preclude the Supervisor from employing alternative or supplemental procedures to meet the particular circumstances of each appeal. 950 C.M.R. 32.08(7)(a-d) Many ofthe descriptions of the remaining records are not sufficiently specific to allow for a determination as to whether the documents may be withheld. For example, the names of recipients of certain documents are not included, some withheld documents are described simply as "letter," and the subjects of emails are not included. As a result, it is unclear whether the entirety of the responsive records may be withheld as personnel information. With regard to the exemption claims in the index, the EOPSS does not provide specificity to justify its Exemptions (a), (d) and attorney-client privilege claims. Therefore, I find the EOPSS has failed to provide a custodial index that is in compliance with the Regulations. It has come to my attention that Mr. Labriola sent EOPSS a request for records dated March 19,2015. This request was for records.described in the above-referenced custodial index.

Ms. Shannon C. Hickey, Esq. SPR15/210 Page Four July31,2015 On March 20,2015, the EOPSS responded to Mr. Labriola by referring to the February 24,2015 response and accompanying index. As of the date of this Determination, this office has not received a letter from Mr. Labriola indicating that he wishes to appeal the response dated March 20, 2015. Therefore, I will not opine on the validity of the March 20 response at this time. Accordingly, whereas the EOPSS has not established that the entirety of the responsive records may be withheld as personnel information under Exemption (c), the EOPSS is hereby ordered, within ten (1 0) days, to provide Mr. Labriola with the remaining records. If the EOPSS maintains that any portion of the remaining records are exempt from disclosure it must, within ten (1 0) days, provide to Mr. Labriola a written explanation, with specificity, how a particular exemption applies to each record. This response must include a custodial index that is in compliance with the Regulations and applicable case law. A copy of this response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec. state .rna. us. Supervisor of Records cc: Mr. Joseph Labriola