Colman Herman v. Group Insurance Commission (SPR 20180519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 30, 2018 SPR18/519 · Rachelle S. Mercier, Esq. Associate General Counsel Group Insurance Commission Charles F. Hurley Building 19 Staniford Street, 4th Floor Boston, MA 02114 Dear Attorney Mercier: I have received the petition of Colman Herman appealing the response of the Group Insurance Commission (Commission) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested copies of: • All communications from January 15, 2018 to the present dealing with the Commission's plans to reduce the number of plans offering health insurance coverage through the Commission and the Commission's reconsideration of the reduction, including: 1. Internal communications exchanged between and/or among the Commissioners and the staff and outside parties; 2. External communications exchanged between and/or among the Commissioners and the staff and outside parties. • Communications include: emails, letters, memoranda, faxes, reports and notes, including any communications created or received on a personal computer. • Outside parties include: officials in the Executive Office of Administration and Finance, other state agencies, the Governor's Office, unions, workers and former workers who participate in the Commission's insurance plans, the general public, insurance companies and reporters. In a March 29, 2018 response, the Commission informed Mr. Herman that the Commission is providing him with a small number of privileged documents that have been redacted. In addition, the Commission provided a privilege/exemption log for documents that the Commission is withholding in their entirety. Mr. Herman appealed the Commission's response, informing the Supervisor of Records that the privilege log does not comply with the Suffolk Construction Co. case, and that the 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

Rachelle S. Mercier, Esq. SPR18/519 Page 2 April 30, 2018 Commission's Exemption (c) claim to withhold a draft of testimony before the Commonwealth Senate Ways and Means Committee lacks the required specificity in claiming an exemption. As a result, this appeal was opened. 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) (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 ... "); 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). Common law attorney-client privilege The Commission has claimed that the records provided have been redacted under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). 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 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., 449 Mass. 444. 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). 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

Rachelle S. Mercier, Esq. SPR18/519 Page 3 April 30, 2018 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 (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 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). 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 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." G. L. c. 66, § lOA(a) (emphasis added). The Commission provided a privilege log that identifies the emails, author and recipients, dates, the general subject matter of the emails, and that the emails contain attorney-client privileged advice. In an April 30th telephone conversation with a Public Records Division attorney, you explained that the Commission provided Mr. Herman with the emails, redacting the attorney-client privileged advice. However, the Commission did not identify the job titles of the individuals who sent and received the emails to demonstrate that an attorney or attorneys were involved in offering legal advice to a client, in the client's search for advice on a particular subject matter. I find that the Department has not met its burden in claiming the attorney-client privilege. However, you informed this office that the Commission will provide a supplemental response that is in compliance with the requirements in Suffolk and G. L. c. 66, § 1 OA. Exemption (c) The Commission's response indicated that it has withheld, in its entirety, the draft of testimony before the Commonwealth's Senate Ways and Means Committee pursuant to Exemption ( c) of the Pubic 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, disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c).

Rachelle S. Mercier, Esq. SPR18/519 Page 4 April 30, 2018 First clause Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this determination, 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 be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). While it is generally held that one's right to privacy is extinguished at death, an individual's privacy interest in his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. Second clause 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. AssistantComm'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. The Commission claimed Exemption (c) to withhold the entire draft testimony, without providing any specificity on how this exemption allows the Commission to withhold the record

Rachelle S. Mercier, Esq. SPR18/519 Page 5 April 30, 2018 in its entirety. In the April conversation with a Public Records Division attorney, you were advised that the Commission should redact any medical or private information and provide the balance of the record, rather than withhold the record in its entirety. 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 ... "); Flatley, 419 Mass. at 511. In light of the above, I find the Commission has not met its burden to withhold the responsive record in its entirety under Exemption (c). See Reinstein, 378 Mass. at 289-90 (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, § 1O (a). Order Given that the Commission did not provide a written response that provided the specific reasons for withholding the "draft of testimony" record under Exemption (c) the Commission did not meet its burden to withhold the records. Consequently, the Commission must review and redact the record where necessary, and provide Mr. Herman with the record and a response to specifically explain any redactions, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. The Commission is also ordered to provide Mr. Herman with a supplemental response regarding its attorney-client privilege claim, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such responses 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman