Marc Larocque v. Brockton, City of (SPR 20181208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27,2018 SPRl8/1208 Megan D. Bridges, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Bridges: I have received the petition of Marc Larocque of The Brockton Enterprise appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, 5 10A; see 950 C.M.R. 32.08(1). Mr. Larocque requested information about any investigations conducted this year by Collins, Loughran & Peloquin, P. C. on behalf of the City, specifically: 1. Correspondence between the City and Collins, Loughran & Peloquin from this year; 2. Copies of invoices received and purchase orders paid in connection to any personnel investigations conducted by Collins, Loughran & Peloquin on behalf of the City; and 3. Complaints made to the City's Personnel Department by Parking Authority employees this year about workplace issues. Requests Number 2 and 3 With its August 8,2018 response, the City provided Mr. Larocque with copies of invoices and purchase orders relative to the request for legal invoices and purchase orders, (Request Number 2). However, the City redacted all detail from the invoices from Collins, Loughran & Peloquin, P. C. under Exemptions (c) and (f) of the Public Records Law, except dates, number of hours, and the amount of money billed to the City. The City's August gthr esponse informed Mr. Larocque that the City has no records responsive to his request for any complaints from Parking Authority employees, (Request No. 3). Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, 5 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 of records at the time of the request. G. L. c. 66, 5 lO(a)(ii). 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

Megan D. Bridges, Esq. Page 2 August 27,201 8 Request Number 1 - correspondence The City's August 8"' response concerning Mr. Larocque's request for correspondence between the City and Collins, Loughran & Peloquin indicates that all correspondence is withheld under the attorney-client privilege and Exemptions (c) and (f) of the Public Records Law. As a result of the City's response relative to Requests 1 and 2, Mr. Larocque petitioned the Supervisor of Records (Supervisor), and 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, 5 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). 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) (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). The City's August 8,2018 response sth The City's August response indicates it is withholding the details within the content of the legal invoices under Exemptions (c) and (f). The City is also withholding the correspondence between the City and Collins, Loughran & Peloquin under Exemptions (c) and (f), and under the common law attorney-client privilege. Exemption (c) - Legal invoices; Correspondence 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., 3 88 Mass. 427, 432-33 (1 983).

Megan D. Bridges, Esq. Page 3 August 27,201 8 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 Cow. 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). Waltefield Teachers Ass'n v. School ,C omm 43 1 Mass. 792,798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11 -01 184-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 Publ'g Co. v. Register of Probate for Norfolk Cntv., 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 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). Second clause of (c) -privacy 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 stalte. 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 ;hen assessing the weight of the privacy interest at stalte: (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. People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (201 7). 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.

Megan D. Bridges, Esq. Page 4 August 27,2018 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. It is unclear whether the City is withholding the description of services performed detailed in the legal invoices under both the first clause of Exemption (c) and the second clause of Exemption (c), and how this exemption specifically allows the City to do so. It is also uncertain why the City is claiming Exemption (c) to withhold, in its entirety, the correspondence between the City and Collins, Loughran & Peloquin relative to any investigations conducted this year. I find that the City has not met its burden of specificity in claiming Exemption (c) to withhold the content in the legal invoices, and to withhold the correspondence in its entirety. Exemption (JlL-e gal invoices; Correspondence The City is also withholding the description of services performed listed in the legal invoices, and the correspondence in its entirety pursuant to Exemption (f). Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1,290 n. 18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-290.

Megan D. Bridges, Esq. Page 5 August 27,201 8 The City has not met its burden of specificity in claiming Exemption (f)t o withhold content from the legal invoices, and to withhold the correspondence between the City and st" Collins, Loughran & Peloquin ia its entirety under Exemption (f). Your August response did not explain how Exemption (f) applies to withhold the description of services performed listed in the legal invoices in their entirety. The City has not indicated that there is an ongoing investigation, or how disclosure of even redacted correspondence or general descriptions of services performed that are listed in the legal invoices will prejudice any ongoing or future investigations. Further, with regard to the legal invoices that were provided in a redacted manner, the City has not met its burden to withhold general descriptions of the nature of services performed that do not reveal exempt material. The City must provide any general descriptions of the nature of services performed, such as, "telephone call," "drafted a memo." It is unclear how the detail of services performed within the content of the responsive legal invoices that contain general descriptions could be withheld in their entirety. Therefore, I find that the City must provide any non-exempt, segregable portions of the detail of services contained in the legal invoices. See G. L. c. 66, 5 10(a). Common law attorney-clientprivilege - Correspondence The City indicates that in addition to withholding the correspondence between the City and Collins, Loughran & Peloquin under Exemptions (c) and (f), the City is also withholding the correspondence under the common law attorney-client privilege. 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 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 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 (1 83 1). The Court, however, admonished that a governmental Id. 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:

Megan D. Bridges, Esq. Page 6 August 27,20 18 (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). 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 malting 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, 5 10A(a) (emphasis added). The City has not met its burden of specificity in withholding the correspondence in its entirety under the common law attorney-client privilege in compliance with both the holding in Suffolk and G. L. c. 66, 5 10A(a). Claiming exemptions; duty to segregate Despite the City's response, it is unclear how Exemptions (c) and (f) referenced above apply to withhold the details within the content of the legal invoices, and how those exemptions and the attorney-client privilege apply to withhold the correspondence in its entirety. See G. L. c. 66, 5 10(b)(iv) (a written response shall "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 .. .. "); Flatley, 4 19 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). In particular, the City has not met its burden to withhold the detail in the legal invoices and the correspondence in its entirety. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). Order Accordingly, the City has not met its burden of specificity in redacting the legal invoices under Exemptions (c) and (f), and withholding correspondence under Exemptions (c) and (f) and the attorney-client privilege. I find that the City must provide un-redacted legal invoices, and review the correspondence, redact where necessary and provide the correspondence in a manner

Megan D. Bridges, Esq. Page 7 August 27,201 8 consistent with this order, the Public Records Law and its regulations within 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. Sincerely, w Rebecca S. Murray Supervisor of Records cc: Marc Larocque