Ronald Alexander v. Natick, Town of - Public Schools (SPR 20180345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofRecords March 29, 20 18 SPR181345 Timothy Luff Assistant Superintendent Town of Natick - Public Schools Office of the Superintendent 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received the petition of Ronald Alexander appealing the response of the Town of Natick Public Schools (School) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 13,2018, Mr. Alexander requested time to "inspect all communications by and between the Natick School Committee and [the Superintendent] from 00:OO hours EST on January 1,2018 to the present, including but not limited to emails, letters, memos, sticky notes, phone calls, etc." The School provided responses on March 12,2018 , and March 14,2018, which included portions of the responsive records. The School denied access to others pursuant to Exemption (c) of the Public Records Law and the attorney-client privilege. G. L. c. 4, 5 7(26)(c). Unsatisfied with the School's response, Mr. Alexander petitioned this office and this appeal, SPR181345, 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, 5 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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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

Timothy Luff Page 2 March 29,2018 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 School's March 12'~a nd 14~''r esponses In its March 12,2018 response, the School indicated that it withheld some email communications between the Superintendent and the Natick School Committee under the attorney-client privilege claim and Exemption (c) of the Public Records Law. In its March 14,2018 response, the School indicated that "[elmails among [the Superintendent], School Committee, and attorneys are protected under attorneylclient confidentiality, therefore these emails are being withheld." The School also indicated that "[elmails between [the Superintendent], School Committee, and families which contain confidential student information are being withheld due based [sic] on the privacy exemption referred to, [and] [elmails between [the Superintendent] and School Committee which the disclosure of which may constitute an unwarranted invasion of personal privacy; are being withheld under the privacy exemption referred to." Exemption (c) The School claimed it withheld responsive records pursuant to Exemption (c) of the Public Records Law. 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 Second clause of Exemption (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 3 88 Mass. 427, 432-34 (19 83). 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)

Timothy Luff Page 3 March 29,20 18 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. 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 Id. disputes and reputation. 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 Id. in a law-abiding and efficient manner. at 292. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client 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 among.. .requested reports are privileged or exempted from the public records act." Municipal Lighting, Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (19 93). 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 of specificity; segregable portions 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, 5 lO(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

Timothy Luff Page 4 March 29,2018 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 51 1. The School's response does not contain the specificity required in a denial of access to public records. Instead, the School's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. Although the School claims it withheld responsive records because they contain "confidential information," the disclosure of which "may constitute an unwarranted invasion of personal privacy," considering the PETA analysis, the School 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 School 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 the requested information substantially outweighs the seriousness of any invasion of privacy. PETA, 4 77 Mass. at 291-92. It should be noted 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. Similarly, the School did not provide any detail or specificity on how the responsive records are protected by the common law attorney-client privilege. The School 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. In addition, 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 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, 5 10A(a). Further, I find that the School 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. The statutory exemptions are narrowly construed and not blanket in nature. Therefore, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. Reinstein, 378 Mass. at 289-90; G. L. c. 66, 5 10(a). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the School did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the School is hereby ordered to provide Mr. Alexander 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 School may file a request for reconsideration

Timothy Luff Page 5 March 29, 20 18 of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander