Cornelius W. Phillips, III v. Springfield, City of (SPR 20171511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of& cords November 6, 2017 SPR17/1511 Anthony Wilson, Esq. City of Springfield - Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Wilson: I have received the petition of Cornelius Phillips III, Esq. appealing the response of the City of Springfield Law Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 16,2017, Attorney Phillips requested "copies of any and all emai1s dated 04/2015 - 06/2017 to or from any employee of the Springfield Police Department relating to the 04/08/2015 incident at Nathan Bills which reference 'Nathan Bills."' On October 17, 2017, the Depmiment provided a response in which it provided portions of the requested record and denied access to others claiming the common law attorney-client privilege and Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's response, Attorney Phillips petitioned this office and this appeal, SPR17 /1511, was opened as a result. 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, § 10A(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, § 10(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 pmiion 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

Anthony Wilson, Esq. SPR17/1511 Page2 November 6, 2017 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 Department's October 1111 response In its October 17'11 response, the Department indicated that it had provided 515 pages of documents to Attorney Phillips but must deny the release of other records. The Department indicated that it withheld 48 email messages dated 09/13/2016 through 12/03/2016, between the Law Department, Police Commissioner's Office and the Internal Investigation Unit, and 7 other emails dated 12/22/2016 through 03/02/2017, between the Law Department, Human Resources Department, Police Commissioner's Office and the Internal Investigation Unit regarding legal advice on the investigatory review process and the hearing process respectively. The Department asserts that these email messages are "confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining and/or providing legal advice or assistance and are therefore protected under the rules of attorney-client privilege." The Department provided a privilege log of the emails that were withheld. Common law attorney-client privilege The Department has claimed that ce1iain emails have been withheld 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 discnssed in the affirmative by the Massachusetts Supreme Judicial Court (Cou1i). 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 ofthe attorney-client privilege. Id. The Court requires governmental custodians to satisfy a tln·ee-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); 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).

Anthony Wilson, Esq. SPR17/l5ll Page 3 November 6, 2017 In camera review ofr ecords withheld under a claim of attorney-client privilege G. L. c. 66, §lOA(a ) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pe1tinent 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 attomey-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. Ifan 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, § lOA(a). As noted above, pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as pmi 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 substa11ce of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA( a). Based on the Depmiment's response it seems that additional information could be provided to indicate how the privilege applies to the withheld records in Attorney Phillips' request. While the Depmiment provided a privilege log categorizing by period the emails that were withheld, the Depmtment has not sufficiently provided a detailed description of the record including the names of the author and recipient, the date, the substance of each such record, and whether the attorney client privilege has been waived. Consequently, I find that the Depa!iment has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the records. Accordingly, the Department 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 to Attorney Phillips m1d this office a response describing in detail the emails that were withheld and additional information explaining how the privilege applies to the responsive records.

Anthony Wilson, Esq. SPR1711511 Page 4 November 6, 2017 Exemption (c) The Department also indicated its intent to withhold portions of the records under exemption (c). Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, 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 separate 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. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass .. at 432-34. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold fi:om disclosure as personnel infmmation records containing information that is "useful in malcing employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 43 1 Mass. 792, 798 (2000). The courts have discussed specific categories ofrecords that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01 184-A (June 14, 2013). 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. Further, the public has an interest in knowing whether public employees me "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector ofLym1, 377 Mass. 151, 158 (1 979). As a result, ce1iain information that is considered personal in the ordinmy sense of the word may be considered pmi of a public record if relating to an individual's official responsibilities. See Globe Newspaper Co., 388 Mass. at 435 ("Not every bit of information which might be found in a personnel or medical file is necessmily personal so as to fall within the exemption's protection"); Brogan v. School Comm. ofWestpmi, 401 Mass. 306,309 (1987).

Anthony Wilson, Esq. SPR1711511 Page 5 November 6, 2017 Second clause Analysis under the second clause of Exemption (c) is subjective in natme 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, 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 fi'om other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (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. Id. 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, 477 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. Under its Exemption (c) claim, the Department indicated that "[t]he city must deny the release oftwo email messages, dated 03/20/2017 and 03/21/2017, from the Internal Investigation Unit regarding the hearing process. The City believes that these records are exempt from disclosure as public records pursuant toM G. L. c.4, § 7(26)(c) also known as the 'Privacy Exemption' .... " The Department's response 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. Based on its response, it is unclear whether the Department is claiming an exemption under the first clause of Exemption (c), the "personnel and medical files or information," or the second clause, which pertains to" ... other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy," to withhold the emails. Hence, I find the Department did not provide sufficient detail on how the first and/or second clause(s) of Exemption (c) apply to the responsive record.

Anthony Wilson, Esq. SPR17/1511 Page 6 November 6, 2017 Further, it is uncertain whether the privileged content or the records withheld under Exemption (c) could be segregated. 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, § 10(a); Any redaction under the attomey-client privilege however, would need to be supported by the standards outlined in Suffolk Constr. Co. Consequently, I find that the Department has not met its statutory and regulatory burden of specificity in applying the attomey-client privilege or Exemption (c) to withhold the records. I understand a Public Records Division staff attorney contacted your office about this appeal and the City Clerk, Anthony Wilson, Esq. indicated that the Department would provide this office with umedacted copies of the responsive records for in camera inspection .. This office will issue a Determination as to the public status of tl1e records after its review. Conclusion Accordingly, whereas the Department has indicated that it will provide the responsive records for in camera review, I will consider this administrative appeal closed with the proviso that the Department provide said records to this office without delay. Sincerely, ~IT~ Supervisor of Records cc: Cornelius Phillips III, Esq.