Colman Herman v. Boston Water & Sewer Commission (SPR 20190515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 20, 2019 SPR19/515 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). Previous determinations This request was the subject of previous determinations. See SPR18/1475 Determination of the Supervisor of Records (October 22, 2018); SPRl 8/1728 Determination of the Supervisor of Records (December 4, 2018; February 6, 2019). In my December 4th determination I ordered BWSC to provide Mr. Herman a response in a manner consistent with the order, the Public Records Law, and its Regulations~ I reiterated that order on February 6, 2019. BWSC responded on February 15, 2019 by providing additional support for its claims under Exemptions (c) and (e) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(c), (e); G. L. c. 66A. Mr. Herman appealed and SPRl 9/515 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 SPR19/515 Page2 March 20, 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. Current appeal In a November 16, 2018 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 [201 O] to the date of your above request." In my December 4th determination I found BWSC had not met its burden to withhold responsive records under the exemptions cited; in particular, it has not identified which specific records it is withholding, nor had it provided specific reasons for the applicability of these exemptions as required by G. L. c. 66, § IO(b)(iv). With respect to the attorney-client privilege claim, I found that although BWSC provided information regarding the nature of these records, 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, § IOA(a). In its February 15th response BWSC provides additional information regarding its exemption claims and includes a further description of each row of the list it provided to Mr. Herman. For example, you note "[t]he eleventh row references a matter dated on the spreadsheet March 22, 201 7. The Commission attorney has the arbitration award. The personnel file has a copy of a suspension letter from the decision maker to the subject employee, a discipline letter from the decision maker to the complainant, the grievance from the employee, the demand for arbitration, and the written finding of the arbitrator regarding the matter." Another example of this description is "[t]he thirteenth row references a matter dated on the spreadsheet June 9, 2017. The Commission attorney has files containing interview notes and questions, memoranda between Commission attorneys, research, drafts of letters, and a memorandum between a Commission attorney and the decision maker." Burden of specificity; segregable portions Although portions of the responsive records described in its February 15th response may fall under an exemption, I find BWSC has not met its burden to withhold all responsive records in their entirety. For example, in the event that portions of the records fall within Exemption (c), it is unclear why BWSC cannot provide responsive records in a de-identified manner. See Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 800 (2000) ("Only information that does not permit the identification of any individual is not exempt from disclosure"); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly

Dolores Randolph SPR19/515 Page 3 March 20, 2019 construed and are not blanket in nature); 32 Op. Atty Gen. 157, 164 (May 18, 1977) (an entity" . . . should consider deleting the personal identifying information and making an expurgated copy of the information available to the public.") Further, it is unclear how the settlement agreements referenced in the February 15th response may be withheld in their entirety. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Common law attorney-client privilege With respect to its attorney-client privilege claim, BWSC indicates "[p]lease be advised 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 andlor the attorney work product privilege." You note that these records " ... 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." This response further indicates "[i]t is the Commission's further position that these documents reflect communications that were made in confidence for soliciting and/or obtaining legal advice. Furthermore, the Commission has not waived the attorney-client privilege with respect to these documents or matters." 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