Allison Jarmanning v. Boston, City of - Public Library (SPR 20181560)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 7, 2018 SPR18/1560 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Boston Public Library (Library) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 2, 2018, Ms. Jarmanning requested "[a]ny records detailing why three facilities managers are on leave [and] [a]ny police reports in the possession of the library, including those filed between June 1, 2018 and present." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1245 Determination of the Supervisor of Records (August 31, 2018). In my August 31st determination, I found that the Library had not met its burden to withhold responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. Accordingly, I ordered the Library to review the records, redact where necessary, and provide Ms. Jarmanning with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the August 31st determination, the Library provided a response on October 23, 2018, denying access to responsive records pursuant to Exemption (c) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(c). Unsatisfied with the Library's response, Ms. Jarmanning petitioned this office and this appeal, SPRl 8/1560, was opened as a result. 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, § 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 One AshburtonPlace, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Shawn A. Williams, Esq. SPR18/1560 Page 2 November 7, 2018 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Library's October 23rd response In its October 23, 2018 response, the Library indicates that the investigation has concluded and also identifies the records in its possession as follows: "one (1) investigative report prepared by counsel for the City of Boston's Office of Labor Relations (OLR); one (1) spreadsheet created by OLR for purposes of its investigation; and three letters that were issued to each of three individual Library staff members at the conclusion of the investigation." The Library states that these records are exempt from disclosure pursuant to Exemption ( c) and the attorney-client privilege. 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 G. L. c. 4, §7 (26)(c). First clause ofE xemption (c)-personnel 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,

Shawn A. Williams, Esq. SPR18/1560 Page 3 November 7, 2018 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 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 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). Under its Exemption (c) claim, the Library asserts that "[t]he three letters are entirely exempt from disclosure as personnel records associated with disciplinary matters pursuant to the first clause of the privacy exemption to the [P]ublic [R]ecords [L]aw. G. L. c. 4, §7 (26)(c); see also Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792 (2000)." Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee's employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Wakefield, the Court found that at a minimum, personnel information includes, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield, 431 Mass. at 798. The Court concluded that these pieces of information "constitute the core categories of personnel mformat10n that are useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c)." Id. at 798-99. Whereas the Library indicates in its response that the third category of records, letters given to each of the individuals, relate to disciplinary matters, I find that the Library has met its burden to establish that the records constitute one of the core categories of personnel information the Wakefield court found to be exempt under the personnel clause. Consequently, the records may be properly withheld from disclosure under the first clause of Exemption (c). Common law attorney-client privilege 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.

Shawn A. Williams, Esq. SPR18/1560 Page 4 November 7, 2018 See Suffolk, 449 Mass. at 450 n.9; 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). 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. 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 (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). Under the attorney-client privilege claim, the Library indicates that "[t]he investigative report and spreadsheet were prepared by counsel and contain legal advice." Acknowledging that it has to satisfy a three-part test under Suffolk, the Library explains that the "[t]he report and spreadsheet contain information between an attorney and client related to 'the client's search for legal advice from the attorney in his capacity as such.' All these communications 'were made in confidence.' In all cases 'the privilege has not been waived.' The Client is the City of Boston, including in this instance the Boston Public Library." Based on the Library's response, it is unclear how the "spreadsheet created by OLR for the purposes of its investigation" is a "communication[] ... received from a client during the course of the client's search for legal advice from the attorney in his capacity as such." The Library must clarify this matter. Further, as stated above, in order to assess whether a record has been properly withheld under the 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). As such, the Library must provide a detailed description of the records it withheld under the privilege. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to this issuance of this decision. Conclusion Accordingly, the Library is ordered to provide Ms. Jarmanning with a response to the request, 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.

Shawn A. Williams, Esq. SPR18/1560 Page 5 November 7, 2018 Sincerely, ~ a y ~ Supervisor of Records cc: Allison Jarmanning