Jane Bybee v. Weston, Town of - Town Clerk (SPR 20160343)

The Commonwealth ofMassachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 3, 2016 SPR16/343 Ms. DonnaS. VanderClock Town Manager-Town of Weston Town Hall P.O. Box 378 Weston, MA 02493 Dear Ms. VanderClock: I have received the petition of Jane Bybee appealing the response of the Town of Weston (Town) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Bybee requested records pertaining to specifically identified properties in the Town. I understand Ms. Bybee narrowed this request to copies of communications to and from a specifically named individual. This narrowed request is the subject of this appeal. Previous appeal and determination This request was the subject of a previous appeal. See SPR15/766 Determination of the Supervisor of Records (December 31, 2015). In my December 31 determination I closed the appeal with the proviso that the Town provides Ms. Bybee a supplemental response prepared in compliance with the order, the Public Records Law and its Access Regulations (Regulations). The Town was required to explain which records have been provided and address the remaining records to be provided. The Town provided a response to this order in a letter dated January 27, 2016. Ms. Bybee informed this office she objects to this response and seeks further action. This appeal (SPR16/343) was opened as a result. January 27 response The Town enclosed additional responsive records along with its January 27 response and waived any applicable fees. However, you also indicated the Town is withholding one hundred thirty-one (131) emails under Exemption (c) of the Public Records Law as well as the common law attorney-client privilege. G. L. c. 4, § 7(26)(c); Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Donna VanderClock SPR16/343 Page 2 June 3, 2016 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (c) You explain that eighty-three (83) emails were withheld under Exemption (c) of the Public Records Law; specifically, forty-six (4 6) were withheld under the first clause of Exemption (c) and thirty-seven (37) emails were withheld under the second clause. 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) First clause 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 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. Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.l5. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and

Ms. Donna VanderClock SPR16/343 Page 3 June 3, 2016 law-abiding manner." Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. ofWestport, 401 Mass. 306, 309 (1987). Second clause Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r ofReal Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. at 156. Attorney-client privilege In addition, you explained that an additional forty-eight ( 48) emails were withheld under the common law attorney-client privilege. The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth ofMassachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993).

Ms. Donna VanderClock SPR16/343 Page4 June 3, 2016 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, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & 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). Custodial indexing of records The Supervisor may require a custodian to compile an index of the requested records where numerous records or a lengthy record have been requested. Said index shall meet the following requirements: (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 of the 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. Although the Town provides a general description of the exemptions' applicability to the responsive records, I find such an index would act to assist the Town in meeting its burden of specificity with respect to any claimed exemptions to the Public Records Law. Also, the Town must provide Ms. Bybee a privilege index for responsive records withheld under the attorney client privilege. See Suffolk, 449 Mass. at 460. I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, the Town is hereby ordered to Ms. Bybee with a supplemental response without delay, prepared in compliance with this order, the Public Records Law and its Regulations. If the Town maintains that any portion ofthe responsive records are exempt from disclosure it must provide a written explanation, with specificity, how a particular exemption applies to each record in a manner described in this order. 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. A copy of the response must be provided

Ms. Donna VanderClock SPR16/343 Page 5 June 3, 2016 to this office. It is preferable to send an electronic copy of this response to this office at pre@sec. state .rna. us. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a cords custodian in person to conduct training workshops on the Public Records Law upo quest. Please contact my office directly at the telephone number provided in this dete ina ion for further information. cc: Ms. Jane Bybee