Ronald Alexander v. Framingham, Town of - City Solicitor (SPR 20181896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 19, 2018 SPRlS/1896 Christopher Brown, Esq. Petrini & Associates, P.C. Counselors at Public Law 372 Union Avenue Framingham, MA O1 702 Dear Attorney Brown: I have received the petition of Ronald Alexander appealing the response of the City of Framingham Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 19, 2018 Mr. Alexander narrowed his request of email communications to: "1. Please send me 5-10 examples of emails [s]ent by Dr. Tremblay in June 2018, that in your opinion, need to be redacted to protect student information and privacy. Of course, you may redact these emails as you see appropriate; and 2. Please send me 5-10 examples of emails [s]ent by Adam Freudberg in October 2018, that in your opinion, need to be redacted to protect student information and privacy. Of course, you may redact these emails as you see appropriate." On December 4, 2018 via email, the School provided redacted emails to Mr. Alexander, accompanied by a response indicating that the redactions were pursuant to the common law attorney-client privilege; federal and state laws as they operate through Exemption (a) and the personnel clause of Exemption (c) of the Public Records Law. As a result of the redactions, Mr. Alexander 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, § 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

Christopher Brown, Esq. SPR18/1896 Page2 December 19, 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) (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 School's December 4, 2018 response In its December 4th response that accompanied the redacted records, the School indicated that personally identifiable information was redacted under the federal Family Education Rights and Privacy Act (FERPA ); the federal Individuals with Disabilities Education Act (IDEA); state student record laws and regulations G. L. c. 71, §§ 34D, 60; G. L. c71B, § 1 and 603 C.M.R. 23.00 et seq.; and Champa v. Town of Weston, 473 Mass. 86 (2015). The response also indicates that one email was redacted pursuant to the first clause of Exemption (c) as personnel information. Finally, the School's response asserts that some emails were redacted to protect attorney-client privileged information. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. C. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit

Christopher Brown, Esq. SPR18/1896 Page 3 December 19, 2018 access to the listed individuals or entities. In its December 4th response, the School explains, " ... some emails have been redacted to remove personally identifiable information which is exempt from disclosure under the Public Records Law." The School cites FERPA 20 U.S.C. § 1232g; IDEA 20 U.S.C. § 1400; G. L. c. 71, §§ 34D and 60; G. L. c. 71B, § 1; and 603 C.M.R. 23.00 et seq. as these federal and state laws and regulations operate through Exemption (a), and restrict the dissemination of any information within the content of the emails that may identify students. In the School's response you state, "[t]hese emails are communications between school officials and parents regarding individual students, and one email is with counsel regarding a student discipline issue." The School posits that any "personally identifiable information" (PII) regarding students was redacted from the emails provided to Mr. Alexander. Based on the School's response, it is unclear what information is being redacted and how the information falls within the categories of PII requiring redaction. Further, the response does not detail which emails were redacted pursuant to these statutes as they operate through Exemption (a). To the extent that the records were redacted to protect PII under FERP A, IDEA or the state student records laws, the School must provide an explanation as how the redacted information constitutes PII and is required by these laws to be redacted. Exemption (c) - personnel clause The School redacted one email pursuant to the first clause of Exemption ( c) as personnel information. The response states, "[t]he email concerns educator licensing actions for [the School's] staff, which is squarely within this category of information." 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). Given that the School's response indicates that the email was redacted due to personnel information, this determination will focus on the first clause of Exemption (c). 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 &

Christopher Brown, Esq. SPR18/1896 Page 4 December 19, 2018 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 informatioQ. 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). Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption (c), the Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. It is unclear from the School's response which email the School is referring to among all the emails that were provided to Mr. Alexander. It is also unclear from your response whether the email pertains to a particular individual, and whether the content redacted from the email is considered one of the core categories of personnel information that Massachusetts courts have found may be withheld from disclosure under Exemption (c). See Worcester, 58 Mass. App. Ct. at 5. Your response merely states, "that the redacted email concerns educator licensing actions for [the School] staff, which is squarely within this category." As a result, I find that the School has not met its burden of specificity in withholding the content of one email 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.

Christopher Brown, Esq. SPR18/1896 Page 5 December 19, 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). Also, 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 the December 4th response regarding certain email communications, the School asserts, "[s]ome of the emails have been redacted as they contain privileged attorney-client communications which are protected from disclosure under the common law attorney-client privilege recognized in [Suffolk]. Specifically, emails between Attorney Benjamin and school officials regarding student discipline and an executive session topic have been redacted. These communications reflect legal advice or requests for legal advice sought in confidence by school officials from counsel for which the privilege has not been subsequently waived." 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). After review of the December response of the School, I find that the School did not provide all of the information required by G. L. c. 66, § lOA(a). Under the Public Records Law, the School must provide a detailed description of the attorney-client privileged records, including the names of the authors and recipients of the advice; the date of the communication; the substance of the record; and the grounds upon which the attorney-client privilege is being claimed. Burden of specificity in responding; claiming exemptions/privileges Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School did not meet its burden of demonstrating how the redactions to the responsive emails are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I find the School must provide a detailed response or index of the records to account for the redactions to each of the records and the corresponding exemption in the Public Records Law that the School claims supports each of the redactions. See 950 C.M.R. 32.08(5)(a)-(c).

Christopher Brown, Esq. SPR18/1896 Page 6 December 19, 2018 Conclusion I find that the School has not met its burden of specificity in redacting content from the responsive records. Accordingly, the School is ordered to provide Mr. Alexander with 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: Ronald Alexander