Ryan Kath v. Boston, City of - Police Department (SPR 20181701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2018 SPR18/1701 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 Ryan Kath of NBC Universal appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kath requested" ... a copy of the City of Boston's internal investigation into [an identified individual's] drowning at the Curley Center in July 2016." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1497 Determination of the Supervisor of Records (October 25, 2018). In my October 25th determination I ordered the City to review the requests made by Mr. Kath and provide any requested records in accordance with the Public Records Law, its Regulations and the order. On November 9, 2018, the City provided a response denying access to responsive records pursuant to Exemption (c) of the Public Records Law as well as the attorney-client privilege. G. L. c. 4, § 7(26)(c). Mr. Kath appealed and SPR18/1701 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, § 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); 950 C.M.R. 32.06(3); see also Dist. 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

Shawn A. Williams, Esq. SPR18/1701 Page2 November 28, 2018 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. Current appeal In its November 9th response the City explains "[t]here is one record responsive to your request, in the form of a confidential memorandum created by the City's Office of Labor Relations, and entitled 'Summary of Ahern Investigation,' dated August 29, 2018." You assert that this record is exempt from disclosure under the first clause of Exemption ( c) as well as 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). 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 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

Shawn A. Williams, Esq. SPR18/1701 Page 3 November 28, 2018 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 City asserts that the record " ... is exempt from disclosure under the first clause of exemption ( c) of the public records law as a personnel record related to disciplinary matters; accordingly, your request for this record is denied. G. L. c. 4, § 7 (26) (c)." You further indicate that "[t]he entire contents of the responsive record consists of personnel information prepared by Labor Relations. The record was information useful in making an employment decision regarding Ahern related to potential disciplinary matters. See Wakefield Teachers Ass'n v School Comm. of Wakefield, 431 Mass. 792 (2000)." The City also notes that "Labor Relations found no evidence of misconduct, and Ahern resumed his normal work duties." In the Wakefield decision referenced above, a Superintendent conducted an investigation into allegations regarding a teacher. Wakefield, 431 Mass. at 794. Following the investigation the Superintendent wrote a report, which consisted of seven pages and included nine pages of exhibits. Id. at 794 n. 7. The Supreme Judicial Court (SJC) found that the report was exempt from disclosure and indicated "[w]e have no doubt that such a report is 'personnel' information as that term is used in the first category of the exemption." Id. at 797. I find the City must provide additional information regarding whether this responsive record is sufficiently similar to the report in Wakefield to warrant withholding it from disclosure under the personnel 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. See 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). 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. In camera review ofr ecords withheld under a claim of attorney-client privilege In his appeal petition Mr. Kath indicates "[t]o the extent it's appropriate, I would like to request the Supervisor of Records review a copy of the document 'in camera' to determine if all or a portion of it should be publicly released." Please note that G. L. c. 66, § 1O A( a) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part:

Shawn A. Williams, Esq. SPR18/1701 Page 4 November 28, 2018 In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been withheld on the basis of a claim of the 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. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. G. L. c. 66, § lOA(a). As noted above, 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). Under its attorney-client privilege claim, the City indicates "[t]he 'client' is the City of Boston. The relevant person to whom the advice is provided is the Commissioner of the Boston Center for Children and Families. The 'attorney in his capacity as such' includes attorneys from the Office of Labor Relations." You further explain that "[t]he responsive record consists of a single personnel investigation document prepared by attorneys for the City of Boston and provided as legal advice, upon a promise of confidentiality. The City has not waived any right to this privileged information. Accordingly, the responsive record is wholly exempt from disclosure as attorney-client communications." Although the City provides the titles of the author and recipient of the record, I find that in accordance with G. L. c. 66, § lOA(a), the City must provide the names of these individuals, as well as additional information regarding the grounds upon which the attorney-client privilege is being claimed, i.e., how this record is a communication received from a client during the course of the client's search for legal advice from the attorney. See Suffolk, 449 Mass. at 450 n.9. Conclusion Accordingly, the City is ordered to provide Mr. Kath with a response to the request, provided in a manner 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.

Shawn A. Williams, Esq. SPR18/1701 Page 5 November 28, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ryan Kath