Sammy Nabulsi v. Longmeadow, Town of - Town Clerk (SPR 20190914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 21, 2019 SPR19/914 Dianne Georgantas Administrative Assistant Longmeadow Public. Schools 535 Bliss Road Longmeadow, MA 01106 Dear Ms. Georgantas: I have received the petition of Sammy Nabulsi, Esq. appealing the response of the Longmeadow 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, Attorney Nabulsi requested 5 categories of records related to other public records requests and communications related to certain circumstances involving the Superintendent. The School responded by providing records with portions redacted under Exemptions (a), (c), (d), (o) and the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c), (d), (o). 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. Appeal The School provided various responses to the request, including on January 18, 2019; 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

Dianne Georgantas SPR19/914 Page 2 May 21, 2019 February 6, 2019 and March 11, 2019. The School's February 6th response included redacted responsive records and cited Exemptions (a), (c), (d), (o) and the attorney-client privilege in support of the redactions. The School's March 11th response provides supplemental information regarding its exemption claims and includes indices that describe the basis of the redactions on each page. It does not appear that Attorney Nabulsi objects to the redactions made under Exemption (o), however, Attorney Nabulsi may inform this office if this is not the case. 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. 151, 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 access to the listed individuals or entities. In its March 11th response the School explains that the redactions made under Exemption (a) pertain to "[c]onfidential student information (student names, parent names, student and/or parent e-mail addresses, personally identifiable information under FERPA)." Attorney Nabulsi objects to the School's use of Exemption (a) and provides examples of redactions that do not appear to be contemplated under the Family Educational Rights and Privacy Act (FERPA ). I find it is unclear how all the redactions made under Exemption (a) constitute personally identifiable information that may be redacted under FERP A. See 34 C.F.R. 99.3. The School must provide additional information regarding this matter.

Dianne Georgantas SPR19/914 Page 3 May 21, 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 Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). The first clause, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). With respect to personnel information, 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).

Dianne Georgantas SPR19/914 Page 4 May 21, 2019 The School explains that the redactions made under the first clause of Exemption ( c) pertain to "[p]ersonnel and medical information relating to employees." I find it is unclear how all the redactions made under the first clause of Exemption ( c) constitute medical information regarding a specifically identifiable individual, nor is it clear how they are "core categories of personnel information that are 'useful in making employment decisions" regarding identifiable employees that may be withheld from disclosure. The School must provide additional information regarding this matter. Second clause 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. The School explains that the redactions made under the second clause of Exemption ( c) pertain to "[i]nformation relating to a specifically named individual which would constitute an unwarranted invasion of personal privacy if disclosed." I find it is unclear how all the redactions made under the second clause of Exemption ( c) are permissible, particularly in light of the factors articulated in PETA described above. The School must provide additional information regarding this matter.

Dianne Georgantas SPR19/914 Page 5 May 21, 2019 Attorney-client privilege The School's March 11th response provides indices that describe the basis of the redactions made under the 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. 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). Disclosing attorney client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). 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, § IOA(a).

Dianne Georgantas SPR19/914 Page 6 May 21, 2019 Attorney Nabulsi objects to the School's attorney-client privilege claims and further asserts "O'Shea waived the attorney-client privilege, which he relies on to withhold portions of records responsive to RCR's Request No. 5, when he penned and published a Letter to the Editor in The Longmeadow News that detailed the substance of his conversations with Longmeadow's attorney, Elizabeth Valerio." The School's indices contain the names of the authors and recipients and describe the subject matter as "Legal advice," "Personnel," "Attorney work product," or "conveying legal advice." However, the School must clarify how the redacted portions of the emails are communications 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, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9. The School may elect to provide this office with unredacted copies of the responsive records for in camera review as provided for in G. L. c. 66, § lOA(a). However, ifit does not elect to do so, it must provide this office a response with further information relating to the date, the substance of the records, and grounds upon which the attorney-client privilege is being claimed for each record as contemplated above and in G. L. c. 66, § lOA(a). In addition, I find that the School must clarify whether the privilege as to the communications at issue has been waived. In particular, it must clarify whether these records were released to a third party and address Attorney Nabulsi's assertion that the privilege, if any, for the records responsive at issue has been waived. See Suffolk Constr. Co., 449 Mass. at 450 n.9. Work product It should be noted that the Supreme Judicial Court (SJC) opined on the issue of work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption ( d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. I find that the School has not established how the information redacted as "Attorney work product" constitutes work product that may be withheld as contemplated in DaRosa; in particular, it is unclear how the responsive records were prepared in anticipation of litigation or for trial.

Dianne Georgantas SPR19/914 Page 7 May 21, 2019 Conclusion Accordingly, the School is ordered to provide Attorney Nabulsi with a response to the request, provided 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: Sammy Nabulsi, Esq.