John Paradise v. Sandwich, Town of (SPR 20180737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 5,2018 SPR181737 George H. Dunham Town Manager Town of Sandwich 145 Main Street Sandwich, MA 02563 Dear Mr. Dunham: I have received the petition of John Paradise of the Sandwich Enterprise appealing the response of Town of Sandwich (Town) to a request for public records. G. L. c. 66, 9 10A; see 950 C.M.R. 32.08(1). Specifically, on April 4,2018 , Tao Woolfe of the Sandwich Enterprise requested "[all1 emails, documents and other communications related to the 'Homeless for the Holidavs' event off Quaker Meetinghouse Road between December 6 and 10, 20 17, and the resignation of two participating Sandwich firefighters... " and "all documents pertaining to the Sandwich Fire Department's subsequent internal investigation." The Town provided a response on April 19,201 8 including responsive records and indicating some records had been withheld pursuant to Exemption (c) of the Public Records Law and the common-law attorney client privilege. G. L. c. 4, § 7(26)(c). 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, 9 1O A(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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 0210 8 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

George H. Dunham Page 2 June 5,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Additional responsive records In its April 1 9re~sp~on se, the Town indicates that "[blased upon the Town's initial review of [Ms. Woolfe's] request, it is anticipated that there are records responsive to [her] request." The Town further indicates that "[s]ome responsive records will be withheld from disclosure, or redactions made thereto.. ." The Town states that it "reserves the right to identify and assert applicable exemptions, as it conducts further search and review." The Town includes a "Summary of Basis(es) for Anticipated Withholding or Redacting of Responsive Records." Within its summary, the Town indicates it is claiming Exemption (c) and the common-law attorney client privilege permit withholding or redaction of responsive records. In Mr. Paradise's petition for appeal, he includes responsive records. Based on the Town's response, it is unclear if the Town has completed its search for responsive records and whether the Town plans to provide another response to Ms. Woolfe. 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 1 clause St 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 Id. that relates to an identifiable individual and is of a "personal nature." at 434. Massachusetts courts have found that "core categories of personnelinformation 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., 43 1 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. 1 1-01 184-A (June 14,201 3).

George H. Dunham Page 3 June 5,2018 Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1 985); Globe Newspaper Co., 388 Mass. at 436 n. 15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). In its response, the Town argues that the records sought relate to a "Fire Department administrative inquiry into conduct of certain Fire Department employees. This administrative inquiry was conducted as a result of an internal report of potential misconduct; the point of the inquiry was to determine whether misconduct occurred, whether any internal departmental policies and procedures had been violated, and, if so, any resulting discipline recommended to be imposed. The report of this inquiry (including exhibits thereto) and related documents (including email communications concerning this inquiry), together with resulting disciplinary recommendations (if any) are clearly 'useful in making employment decisions regarding an employee,' and therefore 'absolutely exempt' from disclosure." To the extent that the information withheld contains solely disciplinary documentation relating to a particular individual, such information may be properly withheld. However, the Town failed to meet its burden of explaining with specificity how the report(s), in its entirety, constitutes one of the core categories of personnel information exempt from disclosure. See Reinstein v. Police Cornrn'r of Boston, 378 Mass. 28 1,289-90 (1 979) (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, 5 lO(a). 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. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. The Town is advised that 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).

George H. Dunham Page 4 June 5,2018 The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, fanlily 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. The Town argues that "where a resolution of the allegations against an individual has yet to occur, that person has a privacy interest in such allegations, such that the nature of the allegations may be considered an intimate detail highly personal in nature that may be withheld pursuant to the second clause of Exemption (c)." The Town indicates that "[flollowing [its] review of the records potentially responsive to [Ms. Woolfe's] request, it appears that they contain unresolved allegations regarding a particular individual. Moreover, in the Town's view, the level of redaction necessary to protect that individual's privacy interest would be so substantial as to warrant withholding of the document(s) as a whole. Therefore, the Town is withholding approximately 6 email exchanges amongst town officials/employees pursuant to the second clause of Exemption (c)." In light of the PETA decision and based on the Town's response, it is unclear what type of information is at issue and how a privacy interest is outweighed by the public interest in the information. Although the Town indicates there are "unresolved allegations regarding a particular individual," it is uncertain how those "allegations" fall within the types of information the second clause of Exemption (c) is designed to protect as contemplated in the PETA case. As such, I find the Town has not met its burden to establish that the second clause of Exemption (c) applies to justify withholding of the records in their entirety or redaction of the records. Common law attorney-client privilege In its response dated April 19,2018, the Town indicates that "[tlhere are email communications with the Town's legal counsel that are responsive to [Ms. Woolfe's] request. As those communications contain attorney-client privileged information, and the Town has not waived the attorney-client privilege with respect to such communications, they will be withheld from disclosure at this time." The Town's response included a privilege log. The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffollc 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 f-Iull among.. .requested reports are privileged or exempted from the public records act."

George H. Dunham Page 5 June 5,2018 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 -Suf folk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 61 9 (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. Under 950 C.M.R. 32.06(3)(d), where a record has been withheld on the basis of a claim of the attorney-client privilege, the records access officer must provide a detailed description of the record, including names of the authors and recipients, and in general terms, the subject of the matter of the withheld information. Based on the Town's response it seems that additional information could be provided to indicate how the privilege applies to the withheld records in Ms. Woolfe's request. While the Town provided an explanation as to why these records were withheld and a privilege log, it has not adequately explained the substance of each record and evidenced how each of those records fall within attorney-client privilege. Consequently, I find the Town has not met its statutory and regulatory burden of specificity in applying the attorney-client privilege to withhold the records. Conclusion Given that the Town has not met its burden to explain how an Exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Town is ordered to review the records, redact where necessary, and provide Mr. Paradise 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 Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerelv. u Rebecca S. Murray Supervisor of Records cc: John Paradise