Rodney Panneton v. Lowell, City of - City Solicitor (SPR 20190125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 4, 2019 SPR19/0125 Christine O'Connor, Esq. City of Lowell - City Solicitor 3 7 5 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, § lOA; 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. Previous appeal The requested records were the subject of a previous appeal. See SPRl 8/2080 Determination of the Supervisor of Records (January 7, 2019). In my January ih determination, I found that the City has had not met its burden to withhold responsive records pursuant to Exemptions (b) and (c) of the Public Records Law, and the common law attorney-client privilege. Accordingly, I ordered the City to review the responsive records, redact where 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. SPR19/0125 Page 2 February 4, 2019 necessary, and provide Mr. Panneton with responsive records, provided in a manner consistent ih with the order, the Public Records Law, and its Regulations. Following the January determination, the City provided a response on January 17, 2019, which included responsive records in redacted form. Unsatisfied with the City's response, Mr. Panneton petitioned this office and this appeal, SPR19/0125, was opened as a result. While this appeal was pending, the City provided a supplemental response dated January 28, 2019. 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. 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. 11" The City's January response In its January 17, 2019 response, the City identifies the records in its possession as "[f]irst ... all notes from interviews with the complainant, the subject of the complaint, and all witnesses interviewed in connection with the City's confidential employment investigation into the allegation of discrimination .... Second ... correspondence to the complaint and the subject of the complaint related to the City's investigation. ... Third ... Investigation Report which was drafted by the undersigned counsel for the City in connection with the confidential employment investigation .... This report is based entirely upon the statements made by those individuals who were interviewed in connection with the investigation and includes the conclusions and advice of legal counsel to the City Manager and the Chief of the Lowell Fire Department. Finally the responsive records documents include any and all emails related to the City's investigation." Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the

Christine O'Connor, Esq. SPR19/0125 Page 3 February 4, 2019 government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government 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 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 states that" ... the names and witness statements are exempt from disclosure under exemption (b) [because,] ... any documents created in connection with a confidential employment investigation into allegations of discrimination amongst co-workers relate solely to an internal personnel matter. Further, the disclosure of these individuals' names or their statements provided under an understanding of confidentiality will significantly impact the City's ability to perform necessary government functions." The City explains that "[a]s an employer, it is of paramount importance that [it] is able to conduct employment investigations into complaints lodged by its employees. In connection with these investigations, it is imperative that the City be able to maintain the confidentiality of the details of the investigation, including the identity of those involved in the investigation and any statements they make in connection with the investigation." The City contends that "[a]bsent assurances about confidentiality, individuals will be less likely to come forward with complaints and witness will be less likely to openly and freely participate in any investigation. In addition to inhibiting open participation in employment investigations, the public disclosure of the names and statements of individuals who provided statements in connection with an investigation may then open those individuals to the potential for retaliatory or harassing treatment by others as a result of their participation. ..."

Christine O'Connor, Esq. SPR19/0125 Page4 February 4, 2019 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 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 the first clause of Exemption ( c ), the City states that it redacted all references to employee disciplinary action from the records. The City explains that because " [e ]mployee discipline Was central in [its] investigation, ... the documents being produced are replete with reference to various disciplinary actions imposed on or by those individuals who were interviewed in connection with the City's investigation." Citing the Wakefield decision to support its position, the City asserts that " ... all references to disciplinary actions related to a particular individual have been redacted from the records being produced."

Christine O'Connor, Esq. SPR19/0125 Page 5 February 4, 2019 Second clause ofE xemption (c) - privacy 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, 4 77 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. Under the second clause of Exemption ( c) , the City claims it " ... redacted the name of the individual who lodged the discrimination complaint, the name of the subject of the discrimination complaint, and the names of any and all witnesses who were interviewed or identified in connection with the investigation of the allegations of discrimination from all records. The City has also redacted all statements made by these individuals that are recorded in the records being produced." The City explains that "[t]his information is exempt from disclosure ... as the individuals' whose names appear within the responsive documents have a significant privacy interest in not having their identities or their confidential statements publicly revealed." The City contends that "[t]he participation by these individuals in a confidential employment investigation into allegations of discrimination and the statements that they made in connection with such participation constitute intimate details of a highly personal nature. These individuals were all called upon to provide statements related to their co-workers under assurances that such statements would remain confidential." Further, the City posits that" ... where this matter concerns an internal employment matter, there is no basis to believe that the public disclosure of these individuals' names outweighs the privacy interests of the individuals. This is especially true given the significant

Christine O'Connor, Esq. SPR19/0125 Page 6 February 4, 2019 interest the City has in maintaining the confidentiality of this information so that it may conduct necessary and effective employment investigations when required to do so pursuant to laws, regulations, or policies of the City." 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, 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. The City states that "all details of any legal conclusions and/or legal advice being provided to the City Manager and the Chief of the Lowell Fire Department by the City's Law Department have been redacted from the records being produced. These redactions are primarily contained within the Investigative Report ...." The City explains that the investigative report ". . . was created by the undersigned counsel and was provided to the City Manager and the Chief of the Lowell Fire Department for the sole purpose of providing legal advice and conclusions related to the investigation of the allegations of discrimination, including whether adequate evidence in support of the claim had been discovered and what recommended next steps should be taken by City officials." The City asserts that the " ... investigation report has been consistently maintained as a confidential document. It has never been shared with the complainant, the subject of the complaint, or any witness interviewed in connection with the City's investigation. The only individuals who have seen or been provided access to the Investigation Report are attorneys within the City Law Department, the Director of Human Resources, who received the initial complaint and participated in the investigation at the direction of counsel, and the City Manager and the Chief of the Fire Department, who are the relevant City officials directly responsible for responding to the complaint." The City further states that "[r]edactions based on attorney-client privilege have also been made, to a far lesser extent, to several of the emails being produced in connection with this response. These are instances where attorneys in the City Law Department are providing legal opinions or advise to City officials, such as the City Manager, the Chief of the Lowell Fire Department and the Director of Human Resources, concerning the investigation and its findings."

Christine O'Connor, Esq. SPR19/0125 Page 7 February 4, 2019 The City's January 28th supplemental response In its January 28, 2019 supplemental response, the City rebuts claims made in Mr. Panneton's appeal petition. The City contends that" ... un-redacting the content of the various witness statements will clearly allow Mr. Panneton to learn the identity of the individual who made the statement." The City explains that "Mr. Panneton was the individual whose conduct was alleged to be discriminatory. The basis of this claim was that Mr. Panneton engaged in a pattern or practice of disproportionately targeting minority fire fighters or fire fighters who have family members who are minorities with disciplinary action. As a result, the City's investigation focused on specific instances of discipline. Accordingly, if the City were to un-redact and disclose the content of the witness statements. Mr. Panneton will readily be able to identify who the statement is attributable to, even if that individual's name remains redacted." The City explains that "[t]he witness statements in question all related to specific instances of discipline which the individual was subject to and which Mr. Panneton was directly involved in or responsible for instituting. As a result, redacting the content of all witness statements is necessary because redaction of the names alone will result in the identities of those individuals being revealed. Accordingly, the redaction of all witness statements was necessary because redacting the individual's names alone does not provide adequate protection of these individual's privacy interests." Also, the City explains that un-redacting witness statements would have serious implications on the "City's ability to conduct effective employment investigations when complaints such as the one that is the subject of Mr. Panneton's request is received." The City explains that "[t]he witness statements contained in the responsive records were made upon the City's representations that the investigation would remain confidential. As with any workplace investigation conducted by an employer, it is widely accepted that the best practice is to ensure that the investigation remains as confidential as possible. This is standard procedure because maintaining the confidentiality of the investigation report and the statements made by individuals who were interviewed in connection with the investigation is one of the primary ways of ensuring that those interviewed will feel comfortable providing information relevant to the investigation. If those interviewed know that their statements will be shared or made public, they are far less likely to be cooperative in the investigation or to provide relevant information that they possess. Further, maintaining the confidentiality of all witnesses and their statements serves to protect these individuals from any potential repercussions or retaliation for their having participated in the investigation. ... " Further, the City reiterates that the redactions made pursuant to the attorney-client privilege were properly applied. The City explains that "[t]hese redactions were only applied where legal advice was being provided directly from the City's Law Department to senior officials in the City's administration, there has been no disclosure of the information to a third party which could constitute a waiver of the privilege." The City states that its custodial index should address any concerns about how and where the privilege has been asserted.

Christine O'Connor, Esq. SPR19/0125 Page 8 February 4, 2019 In camera inspection At this time, in order to facilitate a final determination as to the applicability of the exemption claims made by the City, I request that the City provide this office an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to_your custody and issue an opinion on the public or exempt nature of the records. The authority to_require the submission ofrecords for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of a representative sample of the requested records without delay. Records withheld under the attorney-client privilege 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). Based on the City's response it seems that additional information could be provided to indicate how the privilege applies to the withheld records in Mr. Panneton's request. Although the City has established that portions of the redacted records are privileged communications from

Christine O'Connor, Esq. SPR19/0125 Page 9 February 4, 2019 an attorney, to a client seeking legal advice that has not been waived, and has provided a custodial index detailing which portions of the records were redacted, I find the City must provide a privilege log in compliance with G. L. c. 66, § lOA(a). Specifically, the log must include the names of the author and recipients, the date, the substance of each record, and the grounds upon which the attorney-client privilege is being claimed. See Id. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to provide Mr. Panneton with a response regarding its attorney-client privilege claim, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rodney Panneton