Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20171696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 20, 2017 SPR17/1696 Cindy Livingstone Town of Ashland-Office of the Town Clerk 101 Main Street, 1st Floor Ashland, MA O1 7 21 Dear Cindy Livingstone: I have received the petition of Stephen Morgan appealing the response of the Town of Ashland Town Clerk (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 26, 2017, Mr. Morgan requested a "copy of any written documents and communication which have resulted between 11/5/2017 to the present by, through or to the charter review committee." Mr. Morgan wanted "these documents to also include any email or other forms of communications to, through or from a member of the charter review to anyone regarding the decision by the AG that included the charter review committee's violation of the OML and any actions planned to address the violation or not." The Town provided a response on December 8, 2017, which included responsive records in redacted form. The Town claims the redactions were made pursuant to Exemption (c ) and the common law attorney-client privilege. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Mr. Morgan petitioned this office and this appeal, SPRl 7 /1696, 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, § 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. 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

Cindy Livingstone SPR17/1696 Page2 December 20, 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 Town's December sth response In its December 8th response, the Town indicated that this was a partial response and that provision of other records would require an extension of time. The Town claimed the following exemptions to withhold or redact responsive records. 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, 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, 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). 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

Cindy Livingstone SPRl 7/1696 Page 3 December 20, 2017 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. Under its Exemption (c) claim, the Town indicated that it redacted portions of the responsive records because it "was an exchange between two committee members regarding the [sic] certain family matters, umelated to public business ..." The Town's response does not sufficiently offer specific explanation as to how the second clause permits non-disclosure of the redacted portions of the records. Although the Town claims it redacted certain portions of the responsive record because it relates to "certain family matters," considering the factors in the PET A decision, it is unclear how disclosure of the redacted portions would result in personal embarrassment to an.individual of normal sensibilities. Further, the Town has not demonstrated how the withheld records contain intimate details of a highly personal nature, nor addressed whether this information is available from other sources. Therefore, I find the Town has not met its burden to show how the second clause of Exemption (c) permits the Town to redact the records. Common law attorney client privilege 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. DCAM, 449 Mass. 444 (2007). 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 Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center; Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). 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 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

Cindy Livingstone SPRl 7/1696 Page4 December 20, 2017 (3) the privilege as to these communications has not been waived. Id. at 450, fn 9, citing Matter of the Reorganization of Elec. 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Under its common law attorney-client privilege claim, the Town indicated "[a]s to the documents being withheld or redacted, communications between the chairman and counsel are not subject to disclosure pursuant to the attorney/client privilege. Although not expressly exempted pursuant to statute, the Supreme Judicial Court has held that confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007)." Based on its response, I find the Town has not sufficiently provided information to indicate how the privilege applies to the redacted portions of the records. Although the Town has provided responsive emails which includes the names of the author and recipient(s) of the emails, the date, the substance of the record, and indicated that the responsive email records were "communications between the chairman and counsel" it remains unclear how the privilege applies to redact the records. Particularly, it is unclear how the privilege has not.been waived in light of Mr. Morgan's claim that the communication "is between members of the committee and not the attorney and members." Consequently, I find the Town has not met its burden of specificity in applying the attorney-client privilege to redact responsive records. Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c.66, § lO(a)(ii). Mr. Morgan claims that there were "certain postings on facebook" that have not been provided. A review of the email chain also reveals attachments which were not provided to the requester. Based on the Town's response, together with Mr. Morgan's petition, it is unclear if the Town possesses additional responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Town would provide a supplemental response. Conclusion Accordingly, whereas the Town has indicated that it will provide Mr. Morgan with a supplemental response, I will consider this administrative appeal closed with the proviso that the Town provides 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

Cindy Livingstone SPRl 7/1696 Page 5 December 20, 2017 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, ~ ffVWWllA .· .. -.,-a Rebecca S. Murr:;- - Supervisor of Records cc: Stephen Morgan