Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20180599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2018 SPR18/599 Thomas J. Mc Quaid, CPA Town Clerk Norwood Town Hall 566 Washington Street, 2nd Floor, Room 32, Norwood, MA 02062 Dear Mr. McQuaid: I have received the petition of Mr. Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). On December 28, 2017, Mr. Donovan requested the Norwood Airport Commission meeting minutes for calendar years 2007, 2008, 2010, 2012, and 2013. The Town sent responses on January 11, 2018 and February 7, 2018 to Mr. Donovan which included both the draft and approved minutes of the Norwood Airport Commission meetings from the following years: 2007, 2008, 2010, 2012 and 2013. Mr. Donovan then sent an email on March 26, 2018 to our office regarding the March 14, 2018 public meeting held by the Norwood Airport Commission. Mr. Donovan appealed the Town's response asserting no review was conducted of the executive session meeting minutes. This office provided a determination on April 10, 2018 to Mr. Donovan saying that his appeal was unclear and concerned Open Meeting Laws. Mr. Donovan appeals the Town's response on April 27, 2018 concerning claims of attorney-client privilege made by the Town for redaction ofrecords. The Town provided a response to Mr. 11 Donovan's April 2i appeal on May 8, 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, § lO(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 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

Thomas J. McQuaid, CPA SPR18/599 Page2 May 14, 2018 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. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). 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 communications 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). 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).

Thomas J. McQ uaid, CPA SPR18/599 Page 3 May 14, 2018 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 appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). 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). Current appeal 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, § lOA(a). In a May 8, 2018 letter, the Town claims the attorney- client privilege for withholding executive session meeting minutes. The Town explains in the May 8th letter to Mr. Donovan that the "[i]nformation redacted was notes repeating (in some instances, verbatim) privileged advice and strategy provided to Norwood from its counsel, as well as related privileged communications between Commission members and counsel" were covered by the attorney-client privilege. I find that the Town has not met its burden of demonstrating that the responsive records may be withheld from disclosure under the attorney client privilege because, the Town has neither provided an explanation regarding whether the privilege has been waived nor, has it provided a detailed index in accordance with G. L. c. 66, § lOA(a). Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability ofan exemption. G. L. c. 66, § lO(b )(iv) (written response must

Thomas J. McQuaid, CPA SPR18/599 Page 4 May 14, 2018 "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 Town did not meet its burden to provide the specific reasons for withholding the records pursuant to Exemption (c). Additionally, the Town has not demonstrated how the record, in its entirety, is exempt from disclosure. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In particular in the May 8th letter it is not clear what is depicted, or how disclosure would "constitute an unwarranted invasion of personal privacy" as required by Exemption (c). The Town must make clear what redactions are being made under Exemption (c). Open Meeting Law Mr. Donovan's appeal also is related to the release of executive session minutes which raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the content of the executive session minutes. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. Conclusion Accordingly, the Town is ordered to provide a response in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Mr. Christopher Donovan