Marc Larocque v. Brockton, City of (SPR 20181417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 5, 2018 SPRlS/1417 Megan D. Bridges, Esq. Assistant City Solicitor City of Brockton Law Department 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 Law Department (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, 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 employees this year about workplace issues; and 3. Complaints made to the City's Personnel Department by Parking Authority employees this year about workplace issues. Prior appeal The responsive records were the subject of a prior appeal. See SPRl 8/1208 Determination of the Supervisor of Records (Supervisor) (August 27, 2018). In my August 2ih determination, I found that the City did not meet its burden of specificity in redacting the legal invoices, and withholding the correspondence under the attorney-client privilege. As a result, I ordered the City to provide the un-redacted legal invoices and review the correspondence, redact where necessary and provide the correspondence consistent with my order. The City provided Mr. Larocque with a supplemental response on September 1st\ along with less redacted legal invoices. Mr. Larocque appealed the City's provision of less redacted legal invoices and the withholding of the correspondence under the attorney-client privilege. 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. SPR18/1417 Page 2 October 5, 2018 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 City's September 18, 2018 response In its September 18th response the City indicated that it redacted the legal invoices under Exemption (f) and the first and second clauses of Exemption (c). The City also explained that the legal invoices are for services rendered for specific time periods and not separated by subject matter. Further, the City's September 18th response indicates that the email communications have been withheld under the common law attorney-client privilege. Exemption (c) - Legal Invoices 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 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 of records that may be redacted under

Megan D. Bridges, Esq. SPR18/1417 Page 3 October 5, 2018 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 Publ'g 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. 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). The City indicates Invoice Number 1 has been redacted of personnel and private information. The September 18th response explained that the personnel investigation has concluded and resulted in discipline to the employee. The City posits, "[t]he redaction of the subject matter is necessary as it protects identification of the employee and the employee's disciplinary documentation. It would distort the plain statutory language to conclude that disciplinary reports are anything but 'personnel [file] or information."' Citing Globe Newspaper Co. v. Chief Med. Examiner; Wakefield, 431 Mass. at 798. Invoice Numbers 1 and 2 show that the City redacted the "title" of the investigation; however, the City has not met its burden of specificity in claiming that the name or title of the investigation is disciplinary information or a disciplinary document that may be withheld under the personnel clause of Exemption ( c) . 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 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 People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). 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 disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Megan D. Bridges, Esq. SPR18/1417 Page 4 October 5, 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, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The City also claims that release of the name or title of the personnel investigation would result in personal embarrassment to an individual of normal sensibilities. The September 18th response states, "[t]he information contained therein of a personal nature which has not been made publicly available from any other source. No criminal charges were warranted and the subject of the investigation did not break any laws in the discharge of his/her public duties." The City did not meet its burden of specificity in demonstrating how release of the name or title of the investigation will personally embarrass an employee of normal sensibilities, and how the name or title of the investigation is an intimate detail of a highly personal nature under the second clause of Exemption (c). Exemption (I) - Legal Invoices 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 G. L. C. 4, § 7 (26)(f). 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. 281,290 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. The City has withheld the identities of individuals who provided the City with information in the investigations, one of which is still ongoing, listed in all the legal invoices (April 3rd, May 2nd and June 22nd). The City indicates that release of the names of the individuals

Megan D. Bridges, Esq. SPRlS/1417 Page 5 October 5, 2018 who came forward to volunteer as witnesses or provided information could prevent individuals from coming forward to report similar issues and during similar investigations. You posit, "the City's attempts at handling and/or resolving personnel matters would be frustrated." I find that the City has met its burden to withhold the identities of individuals who reported an incident, provided information or served as voluntary witnesses to the incident or during the City's investigations, and have properly withheld this information under Exemption (f). Common law attorney-client privilege - correspondence (emails) In its September 18th response, the City claimed that the correspondence between the City's attorneys and City employees seeking legal advice on particular matters, and emails between the City employees seeking legal advice on particular matters between the City outside Legal Counsel were 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 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 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 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. 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

Megan D. Bridges, Esq. SPR18/1417 Page 6 October 5, 2018 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 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). Initially, the City did not meet its burden in demonstrating that the email correspondence may be withheld in its entirety under the common law attorney-client privilege. However, after this appeal was opened, the City provided this office with a privilege log for inspection and to support its withholding of the email correspondence under the common law attorney-client privilege. The City will provide Mr. Larocque with the privilege log to support its claim that the emails are protected by the attorney-client privilege. An inspection of the City's privilege reveals: the type of document; name of the document author; names of the document recipients; date of the document; title or description of the document; subject matter of the document; and the privilege claimed by the City for each of the email communications. In its September 18th response the City states that the emails, "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; made in confidence; and the privilege has not been waived." I find that the City has now met its burden to withhold the emails under the attorney-client privilege as required by Suffolk and G. L. c. 66, § 1 OA( a). Conclusion Accordingly, given that the City has not met its burden of specificity in withholding the names or titles of the investigations under both clauses of Exemption (c), the City is hereby ordered to provide Mr. Larocque with a response 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. Sincerely, ~~ Supervisor of Records cc: Marc Larocque