Colman Herman v. Massachusetts Life Sciences Center (SPR 20180862)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2018 SPR18/862 Beth Nicklas General Counsel Vice President for Academic and Workforce Programs Massachusetts Life Sciences Center 1000 Winter Street, Suite 2900 Waltham, MA 02451 Dear Attorney Nicklas: I have received the petition of Colman Herman appealing the response of the Massachusetts Life Sciences Center (Center) to his request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested hard copies and electronic copies of all the invoices submitted by outside law firms to the Massachusetts Life Sciences Center for the period May 1, 2017 to April 30, 2018. The Center's June Ii" response The Center provided Mr. Herman with a response dated June 12, 2018, providing the requested invoices with names of employees and portions of narrative redacted, citing Exemption ( c) and claiming attorney-client privilege. Unsatisfied with this response, Mr. Herman petitioned this office, and this appeal was opened as a result. In his appeal petition, Mr. Herman claims that the Center's response "lacks the specificity required by the law in order to properly claim an exemption," and "fails to comply with the requirements of Suffolk in order toproperly claimattorney-chentprivilege." ~··~··~·~··~··~~·~·~··············· 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). 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

Attorney Beth Nicklas SPR18/862 Page 2 June 21, 2018 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, § 1O (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 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. It is my understanding that a member of the Public Records Division staff contacted you regarding this appeal, and you provided a supplemental response dated June 19, 2018. Exemption (c) ,./ The Center, in its June 19th response, indicates that it has redacted the initials and names of employees that were "the subject of terminations," because disclosure could potentially "harm these individuals' ability to seek future gainful employment." The Center argues that the "disclosure of names in the context of a termination constitute 'intimate details of a highly personal nature.'" 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). 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 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 ofrecords 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). 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 (1985); 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. 151, 158 (1979). As a

Attorney Beth Nicklas SPR18/862 Page 3 June 21, 2018 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). It is unclear from the Center's response how the name and initials of a terminated employee themselves constitute core categories of personnel information that are 'useful in making employment decisions regarding an employee.' See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 5. Consequently, I find that the Center has not met its burden to withhold the names and initials of terminated employees pursuant to the first clause of Exemption (c). Common law attorney-client privilege With respect to records being withheld under the attorney-client privilege, please note that 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). In its June 19th response, the Center indicates that the redacted invoice concerns "communications with attorneys at Foley Lardner regarding protecting the MLSC's interests in a bankruptcy case involving a grantee were made for the purpose of obtaining legal advice in the context of litigation." Requirement ofd etailed index to support claim ofp rivilege Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 449 Mass, at 460. 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). Some jurisdictions, such as the Supreme Court of New Hampshire, have found that invoices for legal services that "provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are

Attorney Beth Nicklas SPR18/862 Page4 June 21, 2018 not privileged." See Hampton Police Assoc., Inc. v. Town of Hampton, 20 A.3d 994, 1001 (2011) ( citing Cypress Media v. City of Overland, 997 P .2d 681, 691, 693 (2000). The Hampton Court found that the Town did not meet its burden because it did not specifically identify which narratives it claimed were privileged. See Hampton, 20 A.3d at 1002. The Center contends, in its June 19th response, that "Suffolk's requirement that [it] produce an index of documents withheld from disclosure is not applicable here since [it] did not withhold any documents." However, the Center is withholding certain information by claiming attorney-client privilege, and therefore has a duty to justify that withholding. While the Center has claimed that the redactions serve "to protect the MLSC's interests," the exact nature of the redacted information remains unclear. Consequently, I find that the Center has not met its burden of specificity in applying the attorney-client privilege to withhold the redacted information. Conclusion Accordingly, the Center is ordered to provide Mr. Herman with a supplemental response, 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Colman Herman