Erin Smith v. Department of Transitional Assistance (SPR 20161232)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofRecords January 3, 2016 SPR16/1232 Nakisha L. Skinner, Esq. Executive Office of Health and Human Services Department of Transitional Assistance 600 Washington Street Boston, MA 02111 Dear Attorney Skinner: I have received the petition of Erin Smith of Fox 25 News appealing the response of the Department of Transitional Assistance (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Smith requested copies of "all emails, memos and reports sent to [the Department] Commissioner McCue about EBT cards or benefits from Oct. 1 to Oct. 31, 2016. " In a response dated December 23, 2016 the Department provided Ms. Smith with six (6) responsive emails. The Department also indicated it is withholding the remaining responsive records under the attorney client privilege, Exemptions (c) and (d) to the Public Records Law, and G. L. c. 66 §17A. 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, § 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. 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. 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

Nakisha L. Skinner, Esq. SPR16/1232 Page 2 January 3, 2016 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. 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 records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Attorney-client privilege Based on the Department's December 23 response, it is unclear whether it is withholding records under the attorney-client privilege. It should be noted that 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); 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). The Department has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the Department did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. In addition, the Department has not identified the specific records that it believes fall into the attorney client privilege. See id. at 460. Exemptions The Department also indicates it is withholding records under Exemption (c) and Exemption (d). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data

Nakisha L. Skinner, Esq. SPR16/1232 Page 3 January 3, 2016 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, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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 of Real 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. Real Prop. Dep't, 380 Mass. at 625. 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 ofLynn, 377 Mass. 151, 156 (1979). The Department states "[r]ecords pertaining to a specifically-named individual, i.e. a DTA client, the disclosure of which may constitute an unwarranted invasion of personal privacy were withheld." The Department also cites G. L. c. 66 §1 7 A in support of its position. I find that based on the Department's response, it is unclear whether it is possible to redact any personally identifying information and provide any non-exempt, segregable portion of the records. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (d) Exemption (d) allows the withholding of:

Nakisha L. Skinner, Esq. SPR16/1232 Page 4 January 3, 2016 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. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). The Department explains "[r]ecords pertaining to policy positions being developed by DTA have been withheld" under Exemption (d). I find the Department has not met its burden to establish how the remaining responsive records, in their entirety, may be withheld under Exemption (d). See Reinstein, 378 Mass. at 289-90. Further, although the Department provided Ms. Smith with some of the records, it is unclear what other records the Department possesses responsive to the request. I understand member of my staff contacted you and provided a copy of the file associated with this appeal. Order Accordingly, the Department is hereby ordered to provide Ms. Smith with a response to the reql1est, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such 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.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Erin Smith