Deborah Butler v. Framingham, Town of - Town Manager (SPR 20170348)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2017 SPR17/348 Christopher L. Brown, Esq. Town of Framingham-Town Counsel Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 Dear Attorney Brown: I have received the petition of Deborah Butler appealing the response of the Town of Framingham Town Counsel (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Butler requested a copy of the report and summary of the report from Lisa Brodeur-McGan, Esq. that was submitted to the Town. The records have been withheld by the Town pursuant to the common law attorney-client privilege, Exemption (c) and Exemption (f) of the Public Records Law. Ms. Butler appealed. The requested records were the subject of a prior appeal and determination. See SPRl 7/216 Determination of the Supervisor of Records (February 28, 2017). In my February 28th determination, I found that the Town had not met its burden of specificity in withholding the records pursuant to the common law attorney-client privilege and Exemptions (c) and (f) of the Public Records Law. Status of the requester and reason/or the request In her petition, Ms. Butler states that she is the subject of the complaint made by Town employees, 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. 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

Christopher L. Brown, Esq. SPRl 7/348 Page 2 March 31, 2017 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, § 1O (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. Common law attorney-client privilege In both its February 6 and March 13, 2017 responses, the Town indicates that the investigation report and summary are being withheld in their entirety pursuant to the common law attorney-client privilege. 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). Your March 13th letter explains that the Town hired Attorney Brodeur-McGan to provide legal advice regarding complaints were lodged against a named individual. The Town posits that the records were used to communicate legal advice to the Town concerning the complaints and the actions that may be taken. However, it is unclear what type oflegal advice the Town was seeking from Attorney Brodeur-McGan and how the report provided such advice. Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). 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. Exemption (c ) applies to:

Christopher L. Brown, Esq. SPRl 7/348 Page 3 March 31, 2017 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. 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. 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 of Lynn, 377 Mass. 151, 156 (1979). The Town's initial February 6th letter 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." In the Town's March 13th response and in a discussion with a Public Records Division staff attorney, you claim the records are protected as

Christopher L. Brown, Esq. SPRl 7/348 Page 4 March 31, 2017 personnel information due to the Town's reliance on the records to consider and ultimately decide whether any disciplinary or termination or any other employment decision was necessary. The Town also states there is information regarding "medical conditions" and "reputational information that is of a highly personal nature regarding complaining employees in both the full report and the executive summary." However, it is unclear how responsive records can be withheld in their entirety under the personnel clause of Exemption ( c ). Further, it is unclear why the Town cannot redact certain identifying information and "intimate details of a highly personal nature" and produce the non exempt portion. See Reinstein v. Police Comm'r of Boston, 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, § 1O (a). Exemption (I) Exemption (f) 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). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 3 71 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. In its March 13th letter the Town states "workplace investigations rely upon assuring confidentiality to complainants and witnesses to the greatest extent possible to assure full cooperation and candor in such investigations." You further state "identifying witness information in both reports is also exempt from disclosure pursuant to [E]xemption (f) ...." I find the Town has met its burden to redact witness identity information from the responsive record.

Christopher L. Brown, Esq. SPRl 7/348 Page 5 March 31, 2017 Conclusion I understand a Public Records staff attorney contacted you and you indicated the Town would provide a supplemental response to Ms. Butler. Accordingly, I will consider this appeal closed with the proviso that the Town provide Ms. Butler with a response to the request, provided 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. Sincerely, ~ ~ · · · · Rebecca S. Murray · Supervisor of Records cc: Deborah Butler Robert J. Halpin