Colman Herman v. Boston Water & Sewer Commission (SPR 20181728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 4, 2018 SPRlS/1728 Dolores Randolph Deputy Director of Communications Boston Water and Sewer Commission 980 Harrison A venue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water and Sewer Commission (BWSC/Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "copies of the complete files dealing with complaints filed against employees of the Boston Water and Sewer Commission for racial and gender discrimination. This is for the period January 1, 2010 to the present" (emphasis in original). BWSC responded on October 3, 2018 and Mr. Herman appealed. Previous determinations This request was the subject of previous determinations. See SPR18/1475 Determination of the Supervisor of Records (October 22, 2018). In my October 22nd determination I ordered BWSC to review the responsive records, redact where necessary, and provide Mr. Herman responsive records, or allow Mr. Herman an opportunity to inspect the records, in a manner consistent with the order, the Public Records Law, and its Regulations without delay. BWSC filed a petition with this office seeking an extension of time to produce records. See SPR18/1615 Determination of the Supervisor of Records (November 9, 2018). I declined to grant BWSC's petition and BWSC provided a response on November 16, 2018. Mr. Herman appealed and SPRl 8/1728 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). 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

Dolores Randolph SPR18/1728 Page2 December 4, 2018 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. 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 16th response BWSC provided Mr. Herman" ... a list of racial or gender discrimination or harassment complaints asserted by Commission employees with employee names redacted containing the date of the complaint, the subject matter of the complaint and the Commission's findings from [2010] to the date of your above request." However, BWSC cites Exemptions (c), and (e) of the Public Records Law, as well as the attorney-client privilege, to withhold responsive records. G. L. c. 4, § 7(26)(c), (e); G. L. c. 66A. Fair Information Practices Act (FIPA ) BWSC indicates that" ... many of the materials requested are located in various Commission employees' personnel files, and are thus exempt from disclosure pursuant to MGI. c. 4, § 7(26)(c) and the Fair Information Practices Act (M.G.L. c. 66A) which governs what information can and cannot be released concerning employee information." Please note that that FIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). FIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. 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

Dolores Randolph SPR18/1728 Page 3 December 4, 2018 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). 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. 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 in a law-abiding and efficient manner. Id. at 292. BWSC asserts that "[hJ ere, both the complaining and accused employees certainly have a privacy interest that would be implicated by the disclosure of the requested information. Many of the employees expected anonymity when discussing these matters with the Commission." Exemption (e) Exemption ( e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e).

Dolores Randolph SPR18/1728 Page 4 December 4, 2018 The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption ( e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e ). The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e ) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. BWSC claims that "[m]any of these records are also exempt from disclosure pursuant to M.G.L. c. 4, § 7(26)(e) as some of the materials include personal reflections on work-related activities and notes created by employees to assist him or her in preparing reports for other employees or for the files of the governmental entity. These personal notes were not shared with other employees and are not maintained as part of the files of a governmental unit." Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 ..." ); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find BWSC has not met its burden to withhold responsive records under the exemptions described above; in particular, it has not identified which specific records it is withholding, nor has it provided specific reasons for the applicability of these exemptions as required by G. L. c. 66, § 1O (b )(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). 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

Dolores Randolph SPR18/1728 Page 5 December 4, 2018 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 ofa ttorney-client privilege Please note that G. L. c. 66, § lOA(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: 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). BWSC explains that" ... the investigatory notes of the Commission's Labor Relations employees regarding complaints of racial and gender discrimination and/or harassment are not being provided, as those records are exempt from the Massachusetts public records law as they are protected by the attorney-client privilege and/or the attorney work product privilege." You also note that these notes " ... involve investigation by the Commission's internal counsel and are prepared in anticipation of litigation relating to said complaints; therefore, such materials are not being produced herewith as they are protected under the attorney-client privilege and therefore exempt from disclosure under the Public Records Law. It is the Commission's further position that these documents reflect communications that were made in confidence for the

Dolores Randolph SPR18/1728 Page 6 December 4, 2018 purpose of soliciting and/or obtaining legal advice. Furthermore, the Commission has not waived the attorney-client privilege with respect to these documents or matters." BWSC also references DaRosa v. New Bedford, 471 Mass. 446,462 (2015). Although BWSC provides information regarding the nature of these records, I find that in accordance with G. L. c. 66, § lOA(a), BWSC must provide "a detailed description of the record[ s], 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" as required by G. L. c. 66, § lOA(a). Conclusion Accordingly, BWSC is ordered to provide Mr. Herman a response 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman