Stephen C. Dewhurst v. Carver, Town of - Town Clerk (SPR 20192045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records October 22, 2019 SPR19/2045 Elaine Weston Assistant Town Administrator Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Weston: I have received the petition of Stephen C. Dewhurst appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dewhurst requested a copy of: • Town Counsel Gregg Corbo's memo/opinion regarding "Use of Playground Property for Site of New Police Station" that was discussed during the 16 April open. public session of the Board of Selectmen under the agenda item, "6:00PM Town Counsel - Discussion of memo related to Article 97 applicability to Playground;" and • Documentation of all instances of referral of any public records request for review by Town Counsel in the time frame of 15 December 2018 through 3 May 2019. Prior appeals The responsive records were the subject of prior appeals. See SPRl 9/1214 and SPRl 9/1787 Determinations of the Supervisor of Records (Supervisor) (July 1, 2019 and September 17, 2019). In my September 17111 determination, I found that the Town did not meet its burden of specificity under the common law attorney-client privilege; the persom1el clause of Exemption (c) and deliberative process under Exemption (d) of the Public Records Law. I ordered the Town to provide a privilege log for the emails withheld under the attorney-client privilege, and a response petiaining to the particular records that are withheld under the first clause of Exemption (c) and under Exemption (d). On September 27111, the Town provided Mr. Dewhurst with a privilege log to address the Town's withholding of ce1iain emails under the common law attorney-client privilege, and the 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

Elaine Weston SPR19/2045 Page2 October 22, 2019 emails withheld under Exemptions (c) and (d). As a result, Mr. Dewhurst petitioned the Supervisor, and the current appeal was opened. 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) (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). Common law attorney-client privilege The Town has claimed that four email exchanges between the Board of Selectmen, the Town Administrator, the Assistant Town Administrator and its Legal Counsel, Gregg Corbo, Esq. of KP Law, P. C., have been withheld under the common law attorney-client privilege as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). · 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 Elec. Co., 414 Mass. 609, 614-615 (1993). The Court 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

Elaine Weston SPR19/2045 Page 3 October 22, 2019 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 Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); 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). 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 "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). In its privilege log, the Town provided the dates, the senders and recipient(s), subject of the email communications and that the common law attorney-client privilege (privilege) applies to withhold the four email exchanges from April 2019. In its October 21st response, the Town asserts: "[t]he Town has not waived the privilege and has provided sufficiently detailed information to not disclose the confidential nature of the communication. Where the Town or its agents receives information from legal counsel, in confidence, such discussions and any documents reflecting advice from its counsel, would be protected from disclosure under the attorney-client privilege. Please be advised that certain e-mails, as spedfied in the previously provided privilege log, constitute privileged information between Town officials and its attorneys for the purpose of obtaining legal advice, for which the attorney-client privilege has not been waived, and therefore, such record may be withheld pursuant to the [privilege]." Based on its privilege log and responses, I find that the Town has met its burden of specificity in withholding the four email communication exchanges with its Legal Counsel under the 3-step test Suffolk and G. L. c. 66, § lOA(a).

Elaine Weston SPR19/2045 Page 4 October 22, 2019 Exemption (c) - personnel clause In its privilege log, the Town indicates it is withholding two emails, dated April 81h and April 11111, pertaining to the Town Administrator's contract and performance evaluation under the personnel clause of 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). The Town has indicated that certain records were withheld under the first clause of Exemption ( c ). 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 comis 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 telmination information pertaining to a paiiicular 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). In its October 2l51 response, the Town asse1is, "[t]he Massachusetts Supreme Judicial Court (SJC) has defined personnel records to include any records that would be helpful in making determinations regarding hiring and firing." Citing Wakefield, 431 Mass. at 798. The Town's response simply restates the language of the SJC in Wakefield, without expressly stating which of the core categories of records that the Worcester Comi details that are useful in making an employment decision. I find that this latest response does not satisfy the Town's burden of specificity to withhold the records under the first clause of Exemption (c). Exemption (d) The Town claimed in its August 22nd response and in its privilege log that ce1iain emails were withheld under Exemption (d) related to the development of policy positions of the Town. On September 271 \ the Town provided a privilege log indicating that the April 4th and April 81h emails are withheld under Exemption ( d) due to discussion of collective bargaining proposals and strategy; and in addition to, the Town Administrator's contract.

Elaine Weston SPR19/2045 Page 5 October 22, 2019 Exemption ( d) allows the withholding of: developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or repmis 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 reports 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 matters used in the development of government policy are subject to disclosure). In its previous responses, the Town did not meet its burden of specificity in claiming Exemption ( d) to withhold records related to contact/collective bargaining proposals. The Town's October 2P1 response asserts," ... the 4/4/19 and 4/8/19 e-mails may also be withheld under [E]xemption (d) since their disclosure could impact the Town's ability to function as an employer relative to said negotiations with contract employees as well as collective bargaining units, including for future employment contracts with Town Administrators and collective bargaining agreements and strategy related to same." The Town is reminded that any factual information that is not deliberative or policy making materials, and/or that is an opinion or conclusion is not exempt under Exemption ( d). I find that the Town did not meet its burden of specificity in explaining how the communications related to the collective bargaining proposals, strategies and discussion of the Town Administrator's contract would be tainted if disclosed even in a redacted manner. In camera inspection In order to facilitate a determination as to the public nature of the requested records, as well as the applicability of the Town's Exemption (c) and (d) claims to withhold the four email exchanges in their entirety, it is necessary to inspect an un-redacted copy of the documents in question. See 950 C.M.R. 32.08(4). After I complete my review of the record(s), I will return the record(s) to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records 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,

Elaine Weston SPR19/2045 Page 6 October 22, 2019 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. Conclusion Accordingly, the Town is ordered to provide this office with an un-redacted copy of the emails withheld under Exemptions ( c) and (d ). The Town may provide this office with an explanation of its position regarding the applicability of Exemptions ( c) and ( d) to withhold the records from disclosure. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~r~ Supervisor of Records cc: Stephen C. Dewhurst Janelle Austin, Esq., KP Law, P.C.