Jesse Gordon v. Randolph, Town of - Town Clerk (SPR 20180935)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 9,2018 SPR181935 Brian P. Howard Town Clerk Town of Randolph 4 1 South Main Street Randolph, MA 02368 Dear Mr. Howard: I have received the petition of Jesse Gordon of the Committee to Recall Jim Burgess appealing the response of the Town of Randolph Town Clerk (Town) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Gordon requested a copy of "an order from the Town Council, or from the Town Council President, or from the Town Manager, forbidding Councilor James Burgess from directly contacting [an identified person], and any related documents or communications. Our belief is that this order (or recommendation) originated with a request from [the identified person] wishing to avoid Councilor Burgess' negative interactions with her." On June 8,2018 , the Town denied Mr. Gordon's request pursuant to Exemption (c) and the common law attorney-client privilege. As a result, Mr. Gordon petitioned the Supervisor of Records (Supervisor) and this appeal was opened. I note that on May 28,2018 , Mr. Gordon made six itemized requests; however, he indicates in his petition that he is only appealing Request Number 1, referenced above. The Town's June 8 ' response indicates that it provided Mr. Gordon with an email chain that was sent by Councilor Burgess to a member of the public, and a number of Town employees and officials, and therefore this particular email chain was not withheld under the attorney-client privilege. 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, fj 10A(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). 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

Brian P. Howard Page 2 July 9,201 8 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, § 10(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 see exemption or exemptions upon which the withholding is based.. ." ); 950 C.M.R. 32.06(3); 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). Tlze Town's June 8,2018 response The Town's June gt" responsstates, "[tlo the extent that the requested records are considered personnel records of the Council or any town employee or official, these records are exempt from production and the Town asserts this exemption. The Town hereby asserts that, to the extent that these records are not deemed to be personnel records, then the disclosure of such records falls into this privacy exemption category." The Town also asserts that it is withholding responsive records under the common law attorney-client privilege because some of the communications took place among Town officials and employees, and that the Town's attorney was copied for the purpose of providing legal advice. Exemption (c) Exemption (c) applies to: 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 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 (1 983). First clause of (c) -personnel The first clause creates a categorical exemption for personnel information that relates to Id. an identifiable individual and is of a "personal nature." 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 Com. 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

Brian P. Howard Page 3 July 9,2018 Cornrn., 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. 11 -011 84-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 Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Waltefield, 43 1 Mass. at 799. 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. & George W. Prescott Publ'a Co. v. Register of Probate for Norfolk Cnty., 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. 15 1, 158 (1 979). 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). The Town did not meet its burden of specificity in claiming that the responsive records may be withheld under the personnel clause of Exemption (c). The Town did not specify whether the responsive records fall under one of the core categories of records that are useful in making an employment decision about a particular employee. See Worcester, 58 Mass. App. Ct. at 5. Nor has the Town met its burden of proving that the records cannot be redacted under Exemption (c) and the balance of the record(s) provided to Mr. Gordon. Second clause of (c) -privacy The Town has also indicated in its June 8fi response that if the Town cannot withhold the records under the personnel clause of Exemption (c), then it may withhold the records under the privacy clause of Exemption (c). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to laow 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

Brian P. Howard Page 4 July 9,20 18 People for the Ethical Treatment of Animals (PETA) v. Dep't of Anric. Res., 477 Mass. 280,292 (20 17). 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 Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 41 5, 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 a. in a law-abiding and efficient manner. at 292. The Town's June 8"' response merely states, "[tlhe Town hereby asserts that, to the extent that these records are not deemed to be personnel records, then the disclosure of such records fall into this privacy exemption category. The Town asserts that production of these records would invade the personal privacy of both a Town employee and a Town Official and the records are therefore being withheld." In its June gthr esponse, the Town did not meet its burden to show how disclosure would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a highly personal nature; nor did it address whether the same a. information is available from other sources. at 292. Therefore, I find that the Town may not withhold the responsive records, in their entirety, under the second clause of Exemption (c). Common law attorney-client privilege The Town's June gth response claims that the responsive emails or portions of those responsive emails may be withheld and/or 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. 11, 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

Brian P. Howard Page 5 July 9,2018 Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1 993). 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 (183 1). The Court, however, admonished that a governmental a. entity has the burden of proving the existence of the attorney-client privilege. The Court 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). I note that the fact that an attorney is copied on an email, as the Town has asserted, is not dispositive evidence that the communication is one in which the privilege may be claimed. 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 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, § 10A(a) (emphasis added). Given that the Town has not met its burden under Suffollc and the Public Records Law of claiming that responsive communications may be withheld under the common law attorney- client privilege, the Town is ordered to provide Mr. Gordon with a privilege log in compliance with Suffolk and G. L. c. 66, 5 10A(a). Burden of specificity in responding; claiming exemptions The Town denied Mr. Gordon's request without claiming Exemption (c) or the common law attorney-client privilege with specificity to support the withholding of the responsive records or portions of the responsive records. Under the Public Records Law, the burden shall be upon

Brian P. Howard Page 6 July 9,2018 the custodian to prove with specificity the exemption which applies. G. L. c. 66, 9 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 1 1. The Town did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt fiom disclosure. Reinstein v. Police Cornm'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@). The Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c) and/or the common law attorney-client privilege. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, the Town withheld responsive records without identifying how many and what type of record(s) it has in its possession that the Town withheld under Exemption (c) and the common law attorney-client privilege. Order Given that the Town has not met its burden of specificity in withholding, in their entirety, the responsive records, the Town is ordered to review the records, redact where necessary and provide the records to Mr. Gordon 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 that accompanies the records must be provided to this office. In addition, the Town is also ordered to provide Mr. Gordon with a privilege log for any records or portions of records withheld under the common law attorney-client privilege in a manner consistent with Suffolk and the Public Records Law. It is preferable to send an electronic copy of the Town's response(s) to this office at pre@,sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Jesse Gordon