Deborah Butler v. Framingham, Town of - Town Manager (SPR 20170216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2017 SPR17/216 Robert J. Halpin Town Manager Town of Framingham-Memorial Building 150 Concord Street, Room 121 Framingham, MA 01702 Dear Mr. Halpin: I have received the petition of Deborah Butler appealing the response of the Town of Framingham (Town) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Butler requested a copy of: 1. The final report drafted by Lisa Brodeur- McGan, Esq., 2. The citation to any federal or state law that requires a workplace investigation of someone who is not an employee, and 3. The amount of money the Town spent for any investigation conducted by Attorney Brodeur-McGan. On February 6, 2017, the Town's Human Resource Director Dolores Hamilton provided Ms. Butler with a copy of the invoices for Attorney Brodeur-McGan's legal services, but the Town is withholding the final report and summary pursuant to the common law attorney-client privilege and Exemption (c) of the Public Records Law. Ms. Butler appealed. No responsive records Ms. Hamilton informed Ms. Butler in the February 6th letter that there are no records responsive to Ms. Butler's request for a federal or state law citation requiring a workplace investigation of a non-employee. Under the Public Records Law, the Town is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). 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

Robert J. Halpin SPR17/216 Page 2 February 28, 2017 Status of the requester and reason for the request In her petition, Ms. Butler states that she is the subject of the complaint made by a Town employee, and that she is entitled to the investigation report and summary in order to resolve her guilt or innocence. It is important for Ms. Butler to understand that her status or interests in the underlying matter which was investigated by an attorney hired by the Town does not afford her any greater right of access to the requested information under the Public Records Law. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Butler's status will play no role in a determination as to whether the records should be disclosed to the public. 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, § lOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv), 950 C.M.R. 32.06(3); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). 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. Common law attorney-client privilege The Town is withholding the investigation report and summary in their entirety pursuant to the common law attorney-client privilege. Ms. Hamilton states in her February 6th letter that

Robert J. Halpin SPRl 7/216 Page 3 February 28, 2017 the report and summary are privileged attorney-client communications between the Town and Attorney Brodeur-McGan made in confidence for the purpose of rendering legal advice to the Town regarding several employee complaints concerning Ms. Butler's conduct. There is an implicit assumption that a governmental entity may assert the attorney-client privilege to protect documents against disclosure where they contain communications between the attorney and his or her client. 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). However, the Court admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. 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 of the Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997). The purpose of the attorney-client privilege is to protect communications received from the client in the course of the client's search for legal advice from an attorney. I find that the Town has not met its burden of proving that the records may be withheld from public disclosure in their entirety under the common law attorney-client privilege. Exemption (c) The Town is also withholding the report and summary in their entirety pursuant to both the first and second clauses of Exemption (c) of the Public Records Law. In the February 6th letter, Ms. Hamilton states, "[T]he Town is withholding the records as personnel and as material relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of privacy." Exemption (c) applies to: personnel and medical files or information; also any other materials or data

Robert J. Halpin SPR17/216 Page4 February 28, 2017 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. 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 fights 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, 3 77 Mass. 151, 154 (1979). Under the second clause of Exemption (c) custodians must 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 that the Town has not met its burden under the Public Records Law of proving that the records should be withheld in their under Exemption ( c ). The Town is advised that where possible, a governmental entity has the duty of segregating exempt material within the content of the record, and providing the balance of the record to the requester. An attorney on my staff contacted you and you indicated that the Town will provide another response specifically stating how Exemption ( c) and the common law attorney-client privilege applies to withhold each of the records, or applies to withhold portions of the records. The Town was provided with a copy of Ms. Butler's appeal file to assist in drafting a more detailed response.

Robert J. Halpin SPRl 7/216 Page 5 February 28, 2017 Conclusion The Town has indicated that it will provide a detailed response concerning its common law attorney-client privilege claim and its Exemption ( c) claim. Accordingly, I will consider this appeal closed with the proviso that the Town provide Ms. Butler with a supplemental response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Ms. Butler may appeal the substantive nature of the response within ninety (90) days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Deborah Butler, Dolores Hamilton