Steven Ballard v. Acton-Boxborough Regional School District (SPR 20180328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 28, 2018 SPRlS/328 Beth Petr Executive Assistant to the Superintendent and School Committee Acton-Boxborough Regional School District 16 Charter Road Acton, MA O1 720 Dear Ms. Petr: I have received the petition of Steven Ballard, Esq. appealing the response of Acton Boxborough Regional School District (District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 21, 2017, Attorney Ballard requested "a true and complete copy of each and every document that was created, produced, sent, received or otherwise has come into the possession of the school district, on any date from April 1, 2017 through today's date." Attorney Ballard indicated that this request should include "but not limited to each email, letter, text, fax, note, and any other document, that refers to me by name in any identifiable form - including any reference to me as 'Steve Ballard,' 'Steven Ballard,' 'Mr. Ballard,' 'S. Ballard,' [and] ... where possible, any document where there is a reference to me that is clear from the context ... " On December 6, 2017, the District responded providing a fee estimate. Upon payment, the District provided portions of the responsive records on December 27, 2017 and denied access to others pursuant to Exemption (c) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(c). Subsequent to the opening of this appeal, the District provided a supplemental response on March 23, 2018. Contending that the District's December 2ih response, "was entirely inadequate," Attorney Ballard petitioned this office and this appeal, SPR18/328, was opened as a result. Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record 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, Attorney Ballard's purpose in making the request has no bearing on the public status of any existing responsive records. 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

Beth Petr SPR18/328 Page2 March 28, 2018 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, § 1 O(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The District's December 21h and March 23rd responses In its December 27, 2017 response, the District indicated that it received Attorney Ballard's check for $100 on December 12, 2017. It informed Attorney Ballard that portions of the responsive records were redacted under the second clause of Exemption (c ) or withheld under the common law attorney-client privilege. Responding to Attorney Ballard's contentions in his appeal, the District in its March 23, 2018 response asserted that it provided 31 documents instead of the approximately 300 emails it mentioned in its cost estimate because most emails were duplicated multiple times. As such "the version that included all of the material was included, not the individual emails separately." As a result, the District indicated that only 67 emails/documents were responsive to Attorney Ballard's request. The District explained that, out of the 67 emails, 33 of these were withheld pursuant to the attorney-client privilege. The District also indicated that it withheld 4 emails under the second clause of Exemption (c) because "[t]hree of these documents described discussions between individuals and local police officers" and " [ o ]ne of them involved students." It asserted that it withheld one document under both Exemption ( c) and the attorney-client privilege. The District responded to other claims made by Attorney Ballard in his appeal and clarified that "[n]one of the documents provided have been redacted."

Beth Petr SPR18/328 Page 3 March 28, 2018 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). Second clause ofE xemption (c) Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432w34 (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 , 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a lawwabiding and efficient manner. Id. at 292. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorneywclient privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents

Beth Petr SPR18/328 Page4 March 28, 2018 among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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. See Suffolk, 449 Mass. at 450 n.9; 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). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Burden ofs pecificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The District's response does not contain the specificity required in a denial of access to public records. Instead, the District's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. Although the District claims it withheld responsive records because they "described discussions between individuals and local police officers" and "involved students," considering the PETA analysis, the District has not demonstrated how the withheld email communications contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. Also, the District did not provide information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining therequested information substantially outweighs the seriousness of any invasion of privacy. PETA, 4 77 Mass. at 291-92. The District is reminded 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 Regulations. Likewise, the District did not provide any detail or specificity on how the responsive records are protected by the common law attorney-client privilege. The District must first apply the three-step test in Suffolk to prove that the records fall under the protection of the attorney client privilege and cannot be disclosed to the public. Furthermore, pursuant to the Public

Beth Petr SPR18/328 Page 5 March 28, 2018 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 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." G. L. c. 66, § IOA(a). Further, I find that the District has not met its burden of demonstrating that the responsive records may be withheld from public disclosure in their entirety under Exemption ( c) and the common law attorney-client privilege. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the District is ordered to provide Attorney Ballard with responsive records, provided 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. The District may file a request for reconsideration within ten business days of the date of this determination letter. Sincerely, ~a~ Supervisor of Records cc: Steven Ballard, Esq.