Bera Dunau v. Office of the District Attorney - Northwestern District (SPR 20192119)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 30, 2019 SPR19/2119 Cynthia M. Von Flatern, Esq. Assistant District Attorney/Records Access Officer Office of the District Attorney-Northwestern District One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Fla.tern: I have received the petition of Bera Dunau, of 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. Dunau requested: "any and all documentation and rulings on disciplinary action taken against [a n identified employee of the NWDAOJ in 2019." Prior appeal The request was the subject of a prior appeal. See SPRl 9/1516 Determination of the Supervisor of Records (Supervisor) (August 9, 2019). In my August 9111 determination, I ordered the NWDAO to provide a further response to the request pertaining to its Exemption ( c) and a privilege log to account for its withholding of email communications under the common law attorney-client privilege. The NWDAO provided Mr. Dunau with: 1. A March 7, 2019 letter from [a n identified employee] to [a n identified individual]; 2. A March 7, 2019 letter from [a n identified employee] to [a n identified court judge requesting to withdraw the original February 5, 2019 letter; and 3. A Withdrawal of Appearance by [an identified employee] in [a specifically filed case before the Hampshire Superior Court]. The NWDAO provided an August 23, 2019 response explaining that it withheld one document under the first clause of Exemption (c), and a privilege log pertaining to emails withheld under the common law attorney-client privilege. As a result of the NWDAO's withholding of one document under the first clause of Exemption ( c) and three email 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. SPR19/2119 Page 2 October 30, 2019 communications under the common law attorney-client privilege, Mr. Danau 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, § 1O (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). Exemption (c) - personnel The NWDAO indicated that it withheld one document under the first clause of Exemption ( c) as personnel information. 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 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 pe1iaining 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

Cynthia M. Von Flatern, Esq. SPR19/2119 Page 3 October 30, 2019 the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). The OWDAO explained that the letter is "disciplinary documentation" that falls within the core categories of personnel file information described in Wakefield as personnel information that is useful in making employment decisions regarding an employee, and is exempt under Exemption (c). See Wakefield, 431 Mass. at 798. The disciplinary information, a May 3, 2019 one-page document signed by the identified employee and contained in the personnel file of this individual, was withheld by the NWDAO as disciplinary information that Massachusetts courts have found may be withheld from disclosure under Exemption (c). See Worcester, 58 Mass. App. Ct. at 5. Comis have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption (c), the Supreme Judicial Comi has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. The NWDAO indicated the one page disciplinary document which pe1iains to an identified individual is useful in making an employment decision regarding an employee. As a result of the NWDAO's May and August 2019 responses and discussions with this office, I find that NWDAO has met its burden to establish the withheld document constituted one of the core categories of personnel information allowed to be withheld under the personnel clause of Exemption (c). See Wakefield, 431 Mass. at 798. Common law attorney-client privilege The NWDAO is withholding three email communications 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 asse1i 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 govermnental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Comi). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court 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

Cynthia M. Von Flatern, Esq. SPR19/2119 Page 4 October 30, 2019 his attorney, in professi011al 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 oniy 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 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). In your August 23rd response, you state, "[t]he emails at issue sought and contain confidential legal advice about a disciplinary nrntter and also dealt with the potential litigation. In each case, the communications were made in confidence and there was no waiver of the privilege. Citing, Suffolk at 448-450 and n.9. In addition ... some of the emails [on March 4, 2019] from counsel to the District Attorney relate to the possibility of litigation and are exempt as opinion work product or fact work product interspersed with opinion work product." Citing, DaRosa v. New Bedford, 471 Mass. 446,448 (2015). A review of the privilege log provided to Mr. Danau explains that the emails in question · on March 2, 2019 and March 4th were between the District Attorney David Sullivan and Attorney James Bolan, who was offering legal advice to the District Attorney and Deputy District Attorney Janice Healy. The subject matter of the emails relates to employee discipline in order to resolve a legal dispute. In addition, the District Attorney asserts that the emails were sent in the context of preparation for the possibility of litigation and contain legal advice and opinions from Attorney Bolan to the District Attorney and the Deputy District Attorney. In accordance with the requirements under Suffolk and G. L. c. 66, lOA(a), the NWDAO's privilege log demonstrates that the communications were received from a client during the

Cynthia M. Von Flatern, Esq. . SPR19/2119 Page 5 October 30, 2019 course of the client's search for legal advice from the attorney in his capacity as such; the communications were made in confidence; and the privilege has not been waived. The NWDAO's privilege log also provides the dates of the privileged communications, names and titles of the senders and recipients, the substance of the communications, and that the legal advice exchanged relates to discussion of an employee discipline matter. I find that the NWDAO has met its burden in withholding the communications under both the 3-part test in Suffolk and the Public Records Law. See Suffolk, 449 Mass. at 450, fn 9; see also G. L. c. 66, § lOA(a). Conclusion Accordingly, as the NWDAO has now met its burden of specificity in withholding the disciplinary letter. under the personnel clause of Exemption ( c) , and the email communications under the common law attorney-client privilege, I consider this administrative appeal closed. If Mr. Dunau is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Bera Dunau, Daily Hampshire Gazette