Kelsey Bode v. Andover, Town of - Town Clerk (SPR 20171311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 26, 2017 SPR17/1311 LawrenceJ.~urphy Town Clerk-Records Access Officer Town of Andover 36 Bartlet Street Andover, ~A 01810 Dear ~r. ~urphy: I have received the petition of Kelsey Bode appealing the response of the Town of Andover Town Clerk (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.~.R. 32.08(1). Specifically, on September 6, 2017, Ms. Bode requested "to inspect or obtain copies of public records that identify when" a certain director of youth services, "originally took leave this summer or was asked to take leave from [the] position as director of youth services, why this occurred, if [the individual] continues to be paid for his position during this absence, if any kind of investigation is ongoing in relation to his absence and the events that spurred it, and when [the individual] will return." ~s. Bode also requested that she would "want access to town policy that disallows town staff from talking about personnel matters." The Town provided a response on September 13,2017, and supplemented its response on September 15,2017, denying access to the responsive records under Exemption (a) and (c) of the Public Records Law and the attorney client privilege. G. L. c. 4, § 7(26)(a)(c). Unsatisfied with the Town's responses, Ms. Bode petitioned this Office and this appeal, SPR17 /1311, was opened as a result. Response to request for records/Procedure for appeals I note that Ms. Bode included in her appeal a public records request dated September 14, 2017. The Public Records Access Regulations, which govern the procedural aspects of all appeals, provide records custodians with ten business days in which a response to a public records request must be provided. See 950 C.~.R. 32.06 (2)(b); G. L. c. 66, § 10(b). To the extent that the 10 -day time frame given to records custodians to respond to a public records request has not elapsed and the Town's responses relate to your September 6, 2017 public records request, this office will not issue a determination on your September 14, 2017 public records request in this current appeal. If after 10 -business days have passed the Town denies your request or fails to respond, One Ashburton Place, Room 1719, Boston, ~assachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lawrence Murphy SPR17/1311 Page 2 September 26, 2017 you may appeal to this office with respect to the September 14th request. At that time this office will review the matter. 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, § IO(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. The Town's September lf11 response In the Town's September 13th response, it indicated that although Ms. Bode's public records request "can be construed as interrogatories ... for purposes of this response I will treat these as requests for physical records containing the information sought." The Town indicated that "[t]he requested records are exempt from disclosure under M. G. L. Chapter 4, section 7 (26) exemption (c), both fitst and second clause. The first clause of exemption (c) exempts from public disclosure personnel files or information. The types of records which you request clearly fall within this category .... In addition, under the second clause of exemption (c) disclosure would constitute an unwarranted invasion of personal privacy." The Town further indicated that for records requesting "'access to the Town Policy that disallows town staff from talking about personnel matters,' we are not in possession of any such written town policy ... " Exemption (c) In the Town's September 13th response, it indicated its intent to withhold the record under the first and second clauses of Exemption (c) of the Public Records Law. Exemption (c) applies to: 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

Lawrence Murphy SPR1711311 Page 3 September 26, 2017 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). First clause The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. ofWestport, 401 Mass. 306, 308 (1987). The Supreme Judicial Court of Mass.achusetts 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.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 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 ofa public record if relating to an individual's official responsibilities. See Brogan, 401 Mass. at 306, 309 .. Second Clause Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing ofthe 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. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017).

Lawrence Murphy SPR17/1311 Page 4 September 26, 2017 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. I d. at 292 n. 13; 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 balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Town's September 15th supplemental response In its September 15th supplemental response, the Town indicated that "although your request does not so state, to the extent that you intended to include records which are covered by the Town's attorney-client privilege or by student record laws and regulations, in addition to being exempt under [E]xemption 'c' as explained in my September 13 response, these documents would also be exempt under [E]xemption 'a'." Exemption (a) The Town indicated its intent to withhold the responsive records under Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute

Lawrence Murphy SPR17/1311 Page 5 September 26, 2017 by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Town's September 13th and 15th responses did not meet its obligation of properly claiming an exemption and providing the requisite level of specificity to withhold the records under the Public Records Law to support an exemption claim. Instead the Town merely cites Exemptions (a) and (c) without further explanation as to the Exemptions' applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Town is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Further, it is unclear what records the Town has in its possession and how responsive records may be withheld in their entirety. The Town must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § IO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Common law attorney-client privilege The Town further indicated its intent to withhold the responsive records under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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., 449 Mass. 444. The Court found that the privilege applies to public attorneys. 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). The Court, however, 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 ofthe 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.

Lawrence Murphy SPR17/1311 Page 6 September 26, 2017 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); 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). In camera review ofr ecords withheld under a claim ofa ttorney-client privilege G. L. c. 66, § 10A(a) discusses the ability ofthe Supervisor ofRecords to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been withheld on the basis of a claim of the attorney-client privilege, the supervisor of records shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney-client privilege and the attorney work product privilege G. L. c. 66, § 10A(a). The Town may elect to provide this office with unredacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide this office a response with further information relating to the description of the record, authors and recipients, and the grounds upon which the attorney-client privilege is being claimed as contemplated in G. L. c. 66, § 10A(a). No duty to create records With respect to your request for "the Town's policy that disallows town staff from talking about personnel matters," the Town indicated that "we are not in possession of any such policy .. ." Under the Public Records Law, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Where the Town does not possess the requested record and has no duty to create it, I find that Ms. Bode's appeal related to this portion of her request is resolved. I understand a Public Records Division staff attorney contacted your office about this appeal.

Lawrence Murphy SPR17/1311 Page 7 September 26, 2017 Conclusion Accordingly, whereas the Town has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Town provide said response in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Bode may appeal the substantive nature of the Town's response within ninety calendar days. See 950 C.M.R. 32.08(1). Rebecca S. Murray Supervisor of Records cc: Kelsey Bode