Stephen J. Morgan v. Ashland, Town of - Public Schools (SPR 20180031)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 24, 2018 SPRlS/031 Katherine Feodoroff, Esq. Town Counsel Town of Ashland 101 Main Street Ashland, MA O1 7 21 Dear Attorney Feodoroff: I have received the petition of Stephen Morgan appealing the response of the Town of Ashland (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." Previous appeal This request was the subject of a previous appeal. See SPRl 7 /1696 Determination of the Supervisor of Records (December 20, 2017). I closed SPRl 7/1696 with the proviso that the Town provide Mr. Morgan with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the determination, the Town provided a response dated January 8, 2017. This response gives further explanation as to why records were withheld under Exemption ( c) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)( c ). 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 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

Katherine Feodoroff SPRlS/031 Page 2 January 24, 2018 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. 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 January 81 response " In its January gth response, the Town indicated it redacted responsive records pursuant to Exemption (c) of the Public Records Law. The Town indicates that "the substance of the email communication would fall within the 'highly personal' category." The Town asserts "[t]he communication was one which would be shared only with friends and confidants regarding a purely family matter, and if disclosed, would be a hardship to, and unwarranted invasion of privacy of, the writer and her entire family. To disclose the exact topic discussed would wholly defeat the purpose of the exemption." The Town further indicates "the Chairman has reviewed these categories and is willing to state under pains and penalties of perjury her belief that this communication contains intimate details of a highly personal nature, as would marital status, paternity, substance abuse, government assistance, family disputes or reputation." Balancing whether the public interest in disclosure outweighs the privacy interest associated with disclosure, the Town states "[t]his communication was an exchange between two committee members regarding the certain family matters on a highly personal topic whereby the privacy interest is extremely strong." The Town indicates "as the discussion was wholly unrelated to business, public or otherwise, there is absolutely no public interest in the disclosure of the information. Therefore, not only does the public interest not 'substantially outweigh' the interest in protecting personal privacy, it does not even nominally outweigh this interest, as it relates in no way to matters within the jurisdiction of the body. ..." 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

Katherine Feodoroff SPR18/031 Page 3 January 24, 2018 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 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. Considering the PETA analysis, the Town indicated that the substance of the email communication falls "within the 'highly personal' category" and contains "intimate details of a highly personal nature, as would marital status, paternity, substance abuse, government assistance, family disputes or reputation." With respect to whether disclosure of the records would result in personal embarrassment to an individual of normal sensibilities, the Town indicated that the communication relates to a "purely family matter," which can only be shared with "friends and confidants."As such, disclosure of the communication or the exact topic "would be a hardship to, and unwarranted invasion of privacy of, the writer and her entire family." The Town further confirmed in a telephone conversation that this information is not available from other sources. With respect to the balancing test set-out in the second clause of Exemption ( c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, I find that because the discussion was

Katherine Feodoroff SPR18/031 Page 4 January 24, 2018 unrelated to business or matters within the jurisdiction of the body, there is no compelling public interest in favor of disclosure that would outweigh the privacy interest of the member involved. Accordingly, in light of the two-prong test articulated in the PETA decision, I find the Town has met its burden to establish that Exemption (c) applies to justify the redacted portions of the responsive records. 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 conimunications 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). 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 the Attorney client privilege claim, the Town claims an identified individual "conveyed the legal opinion to other members of the Committee, who hold the same attorney client privilege. Thus, as the privilege has not been waived, the documents remain protected." In the December 20th determination I found that the Town has not met its burden in demonstrating 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." Based on the Town's January gth response, indicating that the committee members each hold the same attorney client privilege because they are all clients of Town Counsel, in conjunction with the fact that the Town has provided responsive email records which includes the names of the author and recipient(s) of the emails, the date, and the substance of the record, I find the Town acted properly in redacting portions of the responsive records. Conclusion Accordingly, whereas I find that the Town may permissibly withhold ce1iain portions of the responsive records pursuant to the second clause of Exemption (c ) and the attorney-client privilege, I will consider this administrative appeal closed.

Katherine Feodoroff SPR18/03 l Page 5 January 24, 2018 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Stephen Morgan