Rodney Panneton v. Lowell, City of - City Solicitor (SPR 20182080)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2019 SPR18/2080 Christine O'Connor, Esq. City of Lowell - City Solicitor 375 Merrimack Street# 3 Lowell, MA 01852 Dear Attorney O'Connor: I have received the petition of Rodney Panneton appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on November 30, 2018, Mr. Panneton requested" ... all documents, interviews, video, emails any and all records relating to the internal investigation led by [a named individual] into complaints lodged against me by any member of the Lowell Fire Department." The City provided a response on December 11, 2018, denying access to responsive records pursuant to Exemptions (b) and ( c) of the Public Records Law and the attorney-client privilege and work product doctrine. G. L. c. 4, § 7(26)(b), (c). Unsatisfied with the City's response, Mr. Panneton petitioned this office and this appeal, SPRl 8/2080, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Panneton's purpose in making the request has no bearing on the public status of any existing responsive records. 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

Christine O'Connor, Esq. SPR18/2080 Page 2 January 7, 2019 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's December 1 J'h response In its December 11, 2018 response, the City indicates that the records were withheld pursuant to Exemptions (b) and (c) of the Public Records Law, the attorney-client privilege and work product doctrine. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, Provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity

Christine O'Connor, Esq. SPR18/2080 Page 3 January 7, 2019 codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under its Exemption (b) claim, the City explains that the requested records" ... relate to internal personnel practices of the City-namely, the conducting of employee investigations .... [T]he records are replete with witness statements provided in the course of the confidential employment investigation conducted by the City." The City asserts that "[m]aintaining the confidentiality of these statements is vital to the City's ability to effectively conduct employments investigation. Since disclosure would significantly inhibit government functions, they are exempt from disclosure under [E]xemption (b)." 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, 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

Christine O'Connor, Esq. SPR18/2080 Page 4 January 7, 2019 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, citing Wakefield, states that the "Supreme Judicial Court has determined that exempting personnel information from disclosure under the public records law serves to protect the government's ability to function effectively as an employer and that the release of certain personnel information could disrupt the government's capability to conduct sensitive and careful investigations regarding employees. See [Wakefield, 431 Mass. at 802.] ..." As such, the City asserts that the records" ... which include a confidential investigation report and notes from witness interviews related to the investigation, clearly falls within the ambit of [E]xemption ( c ), and therefore are exempt from disclosure." Attorney-client privilege; work product doctrine 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, 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. Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Under its attorney-client privilege claim, the City cites Suffolk and states that "[t]he investigative report [Mr. Panneton] requested is a document that was created by an attorney of the City's Law Department in response to an employment complaint. The report constitutes a communication which provides legal advice and analysis as to the merits of the complaint and what steps may be taken in response. Accordingly, this report and communications related to the same constitute confidential attorney-client communications which remain privileged and exempt from disclosure." The City also asserts that the" ... investigation report, any communications related to the report, and any notes related to witness interviews constitute attorney-work product, which is similarly confidential and exempt from disclosure." 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.

Christine O'Connor, Esq. SPR18/2080 Page 5 January 7, 2019 With respect to Exemption (b ), it is unclear how the requested records relate "solely to internal personnel rules and practices of the government unit." It is additionally uncertain why records cannot be redacted to prevent the disclosure of the City's internal personnel rules and practices. ( emphasis added). Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 10(a ). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. With respect to Exemption ( c ), the court in Wakefield, 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. These, the Court concluded "constitute the core categories of personnel information that are useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c)." Id. at 789-99. Based on the City's response, it is unclear how the "confidential investigative report" and "notes from witness interviews related to the investigation," fall within the core categories of personnel file or information described in Wakefield as personnel information that is useful in making an employment decision regarding an employee pursuant to the first clause of Exemption ( c ). See id. Therefore, I find the City has not met its burden of specificity in withholding the records under Exemption ( c ). With respect to the attorney-client privilege claim, I find the City has not met its burden of demonstrating that the responsive records may be withheld from disclosvre under the attorney-client privilege because, the City has neither provided an explanation regarding whether the privilege has been waived nor, has it provided a detailed index in accordance with G. L. c. 66, § lOA(a). 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). Further, the City has not demonstrated how the requested documents were prepared in anticipation of litigation with respect to its work product doctrine claim. The City must clarify these matters. Additional records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). Although the City mentions an investigation report and notes related to witness interviews, it is unclear if the City possesses additional records reflected in Mr. Panneton's request, specifically, emails and videos. The City must

Christine O'Connor, Esq. SPR18/2080 Page 6 January 7, 2019 clarify this matter and identify the records it has in its possession in accordance with the Public Records Law. See G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the City did not meet its burden to explain how an exemption applies to withhold the records, in their entirety, the requested records may not be withheld. Accordingly the City is ordered to review the responsive records, redact where necessary, and provide Mr. Panneton with responsive records, 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. The City may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rodney Panneton