Bera Dunau v. Office of the District Attorney - Northwestern District (SPR 20191516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records August 9, 2019 SPR19/1516 Cynthia M. Von Flatern, Esq. Assistant District Attorney Office of District Attorney Northwestern District One Gleason Plaza N 01ihampton, MA O1 060 Dear Attorney Von Flatern: I have received the petition of Bera Duneau, from the Daily Hampshire Gazette, appealing the response of the Office of the District Attorney -Northwestern District (NWDAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Duneau requested a copy of "any and all documentation and rulings on disciplinary action taken against an identified employee of the NWDAO in 2019." By letter dated May 9, 2019, the NWDAO informed Mr. Duneau that it was providing i 11 him with a copy of a responsive May letter from the identified employee to another identified person. The NWDAO's response also indicates that other documentation generated relating to the discussions between the pa1iies is not public due to ongoing deliberation under Exemption (d) of the Public Records Law. In addition, the NWDAO withheld communications between public officers and employees of the NWDAO's office and their legal counsel under the common law attorney-client privilege. Other communications have been withheld between legal counsel and governmental employees in the process of a settlement as opinion work product. Citing DaRosa v. New Bedford, 471 Mass. 446,448 (2015). Finally, the NWDAO informed Mr. Duneau that disciplinary rep01is which are part of an employee's personnel file are exempt under Exemption (c) and Wakefield Teachers Assn. v. School Comm., 431 Mass. 792, 798-799 (2000). As a result, Mr. Duneau petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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

Cynthia M. Von Flatern, Esq. SPRl 9/1516 Page 2 August 9, 2019 Tlte 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) (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). · . Tlte NWDAO's May 9,2019 response 111 In its May 9 response, the NWDAO indicates that records have been withheld under the first clause of Exemption ( c ), Exemption ( d) and the common law attorney-client privilege. Exemption (c) 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) . .,_ 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

Cynthia M. Von Flatern, Esq, SPR19/1516 Page 3 August 9, 2019 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. Fmiher, 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, ce1iain 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 Westpo1i, 401 Mass. 306, 309 (1987). A personnel file or information "is not limited to nor does it extend to, all files or information that are located physically in an individual employee's personnel file." Wakefield, 431 Mass. at 797 n. 13; see also Globe Newspaper Co., 388 Mass. at 435 (not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection). I find the NWDAO has not met its burden to show any records it has pertaining to the identified employee constitutes one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the pers01mel clause of Exemption (c). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 431 Mass. at 798. Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual rep01is which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual

Cynthia M. Von Flatern, Esq. SPR19/1516 Page 4 August 9, 2019 matters used in the development of government policy are subject to disclosure). It is unclear from the NWDAO's May 9th response what records it has in its possession that if disclosed to the public will taint the deliberative process, and how the content within these records are recommendations on legal and policy considerations in NWDAO's ongoing deliberative process. I find that the NWDAO has not met its burden to withhold records under Exemption ( d). Common law attorney-client privilege The NWDAO has claimed that the communications between public officers and employees in its office and their legal counsel for the purpose of obtaining legal advice or assistance are protected under the common law attorney-client privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Comi found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Blee. Co., 414 Mass. 609, 614-615 (1993). The Comi affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Blee. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); see also Hanover Ins. Co. v. Rapo & Jepsen

Cynthia M. Von Flatern, Esq. SPR19/1516 Page 5 August 9, 2019 Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the paiiy seeking the attorney-client privilege has the burden to show the privilege applies). Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege that the Supervisor, "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, § 1O A(a). The NWDAO has not met its burden to withhold responsive records under the common law attorney-client privilege. Fmiher, the NWDAO must provide a privilege log to supp01i its attorney-client privilege claim. The NWDAO also notes, "[c ]ommunications between legal counsel and governmental employees in the process of a settlement also constitute opinion work product." Citing, DeRosa v. New Bedford, 471 Mass. 446,448 (2015). It should be noted that the Court opined on this issue in DaRosa. In DaRosa, the Court 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 NWDAO has µot established how the withheld information constitutes work product that may be withheld as contemplated in DaRosa; in particular, it is unclear how the responsive record, which appears to relate to responding to a public record request, was prepared in anticipation of litigation or for trial. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The NWDAO did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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 NWDAO must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). In addition, the NWDAO did not identify the records, categories of records or p01iions of records in its possession that it intends to withhold from disclosure under Exemption ( c ), Exemption ( d) and the common law attorney-client privilege. To deny access to a record under

Cynthia M. Von Flatern, Esq. SPRI9/1516 Page 6 August 9, 2019 the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the NWDAO withheld responsive records without identifying each of the records. Conclusion Accordingly, the NWDAO is ordered to provide Mr. Dunau with a response to the request, 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: Bera Dune au