Mickey Long, Esq. v. Nahant, Town of - Town Clerk (SPR 20180647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 21, 2018 SPRlS/647 Margaret R. Barile Town Clerk Town of Nahant 334 Nahant Road Nahant, MA 01908 Dear Ms. Barile: I have received the petition of Mickey Long, Esq. appealing the response of the Town of Nahant (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Long requested a copy of: 1. All documents constituting any settlement agreement between an identified person and the Town referenced in a news article on March 16, 2018 and in a copy of civil litigation complaint ( complaint) filed in Essex Superior Court; 2. All documents and correspondence received or sent to settle the matters raised in the complaint (including any payment; copy of any checks, etc); 3. All correspondence (including electronic documents, e.g., texts, emails) between the identified person or anyone acting on the identified person's behalf, and the Town or anyone acting on the Town's behalf, regarding any settlement agreement; 4. All correspondence (including electronic documents, e.g., texts, emails), between the identified person or anyone acting on the identified person's behalf, and the Town or anyone acting on the Town's behalf, pertaining to any resolution of the matters raised in the complaint; and 5. All correspondence (including electronic documents, e.g., texts, emails) regarding the identified person's termination of employment and resolution of any dispute arising out of that termination of employment. On May 2, 2018, the Town provided Attorney Long with a response and un-redacted copies of the complaint and settlement) agreement. In its May 2nd response, the Town indicates that additional records have been withheld pursuant to the first clause of Exemption ( c ), the common law attorney-client privilege and Exemption ( d). 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

Margaret R. Barile SPR18/647 Page 2 May 21, 2018 Dissatisfied with the Town's response, Attorney Long petitioned the Supervisor of Records and 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, § 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 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). The Town's May 2, 2018 response The Town's May 2nd response indicates that records responsive to Attorney Long's request which are considered "personnel" records of the identified person were withheld under the first clause of Exemption (c). The response also indicates that records are being withheld as attorney work product under Exemption ( d) and the Supreme Judicial Court (SJC) decision in the DaRosa case. See DaRosa v. City of New Bedford, 471 Mass. 446 (2015). No duty to create records The Town's May 2nd response also asserts that there are no text messages responsive to Attorney Long's request. In a telephone discussion on May 11th, Janelle Austin, Esq. of KP Law confirmed to an attorney in the Public Records Division that no text messages responsive to the request exist. Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody or control of the custodian ofrecords at the time of the request. See G. L. c. 66, §. lO(a)(ii). Accordingly, whereas the Town has confirmed it has no text messages responsive to Attorney Long's enumerated requests, I find that Attorney Long's appeal pertaining to that request is resolved. Exemption (c) Exemption ( c) applies to: personnel and medical files or information; also any other materials or data relating to a

Margaret R. Barile SPR18/647 Page 3 May 21, 2018 specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy 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, 432-33 (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). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption (c), the SJC has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. The Town's May 2nd response indicates that the withheld records are absolutely exempt from disclosure as such records are personnel records pertaining to the identified person, and non-disclosure protects the government's ability to function effectively as an employer. However, the Town has not met its burden of demonstrating how the records are "absolutely exempt as personnel" under the first clause of Exemption ( c ). Special Legal Counsel to the Town, Darren Klein of KP Law, simply stated the language of the Exemption and the court cases that support the Exemption ( c) claim. Attorney Klein did not demonstrate what records or categories of records are being withheld, and how these records fall within the core categories of personnel file information described in Wakefield as personnel information that is useful in making an employment decision regarding an employee pursuant to the first clause of Exemption (c). See Wakefield, 431 Mass. at 798. Therefore, the Town has not met its burden of specificity in withholding the records under Exemption ( c ). Common law attorney client privilege - communications The Town has claimed that the correspondence and documents prepared by counsel responsive to Attorney Long's request constitutes confidential communications between Town officials and its attorneys involved in the underlying matter, for the purpose of obtaining legal

Margaret R. Barile SPR18/647 Page 4 May 21, 2018 advice relative to such matter and have been withheld 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 SJC. Suffolk Constr. Co., Inc., 449 Mass. 444. The SJC found that the privilege applies in the public realm. The Supervisor of Records (Supervisor) 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 SJC 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 SJC, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The SJC 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 ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); see also Hanover Ins. Co. v. Rapa & 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). 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).

Margaret R. Barile SPRI8/647 Page 5 May 21, 2018 The Town did not provide Attorney Long with either a privilege log or index that describes the communications including the names of the authors and recipients of the communications, the dates of the communications, the substance of each communication, the grounds upon which the attorney-client privilege is being claimed, and an indication that the privilege has not been waived. Therefore, the Town has not met its burden of specificity in claiming the attorney-client privilege to withhold the communications. Consequently, Attorney Long must be provided with either a privilege log or index to support the Town's attorney-client privilege claim. Exemption (d) The Town has also indicated that documents prepared by Legal Counsel and other responsive records have been withheld pursuant to Exemption ( d). Exemption ( d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. 4, § 7 (26)(d ). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the developments of government policy are always subject to disclosure). The Court stated, "[w]e recognize that [E]xemption (d) protects documents from disclosure 'only while policy is being developed,' that is, while the deliberative process is ongoing and incomplete." DaRosa, 471 Mass. at 459 n.16 (citing Babets, 403 Mass. at 237 n.8). Further, the Babets Court stated "[t]he Legislature has thus chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available." Babets, 403 Mass. at 237 n.8. In its May 211 d response, the Town states, "documents prepared by counsel and communications between counsel for the Town and [the identified person] relative to the resolution of such litigation referenced in [A ttorney Long's] request are protected as confidential settlement communications between parties." The Town has withheld additional responsive records because they contain litigation related work product used to develop the Town's legal

Margaret R. Barile SPR18/647 Page 6 May 21, 2018 and policy positions relative to the litigation in this particular matter and the position of the Town Administrator. Further, in a May 11th discussion with this office, Attorney Austin explained that disclosure would not only reveal the processes by which the Town and its attorneys review these matters, but could also impact the course of future litigation in other matters. The Town cites DaRosa as support for withholding not only the communications or discussions, but also the responsive records containing litigation related work product. In DaRosa, the Court concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption ( d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Town has not demonstrated that any of the documents were prepared in anticipation of litigation or trial. In fact, the Town has not identified what records it is in possession of; or categories of records that it is in possession of that it is withholding as work product under Exemption (d). Therefore, I find that the Town has not demonstrated that the records in its possession may be withheld, in their entirety, under Exemption ( d). Burden ofS pecificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 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 of demonstrating how Exemptions (c ), ( d), and the common law attorney-client privilege apply to withhold the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Furthermore, the Town did not identify the records, categories ofrecords or portions of records in its possession that have been withheld in their entirety. The Town merely stated that records have been withheld under Exemption ( c ), Exemption ( d), and the attorney-client privilege. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 CMR 32.06(3)(c)(4). The Town must identify any records, categories of records or portions of records it is withholding under the exemptions, and provide Attorney Long with a response stating so.

Margaret R. Barile SPR18/647 Page 7 May 21, 2018 Conclusion Given that the Town did not provide the specificity required in withholding the records under the common law attorney-client privilege as required by statute and the holding in Suffolk, the Town is hereby ordered to provide Attorney Long with a privilege log or index in compliance with G. L. c. 66, § IOA(a) and Suffolk within ten (10) business days. Further, given that the Town did not provide the specificity required in withholding records under Exemptions (c) and (d), the Town cannot withhold the records. See G. L. c. 66, § 1O (b )(iv). Accordingly, the Town is also ordered to review the request, redact records where necessary and provide responsive records in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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 Town may request a reconsideration of this determination within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Janelle Austin, Esq., KP Law Mickey Long, Esq.