Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20192328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

December 3, 2019 SPR19/2328

Patrick J. Ward

Town Clerk

Town of Brookline — Town Hall 333 Washington Street, Room 104 Brookline, MA 02445-6853

Dear Mr. Ward:

I have received the petition of Brooks Ames, Esq. of Brookline Justice League appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 8, 2019, Attorney Ames requested a copy of the “executive session minutes for June 12, 2018 meeting of AC and select board.” The Town provided a response on. November 13, 2019, which included responsive records redacted under Exemption (c) of the Public Records Law, and the common law attorney-client privilege. G.L. c. 4, § 7(26)(c). Unsatisfied with the Town’s response, Attorney Ames petitioned this office and this appeal, SPR19/2328, was opened as a result. While this appeal was pending, the Town provided supplemental responses dated November 18, 2019, and November 25, 2019.

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, § 10A(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, § 10(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.

If there are any fees associated with a response a written, good faith estimate must be

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832¢ Fax: (617) 727-5914

séc.state.ma.us/pre * pre@sec.state.ma.us

Patrick J. Ward SPR19/2328 Page 2 December 3, 2019

provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Town’s November 13 response

In its November 13, 2019 response, the Town indicated that “[t]he requested minutes are produced, redacted to withhold those portions of the minutes that are protected from disclosure under the attorney client privilege and Exemption (c) of the Public Records Law. See Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007); G. L. c. 30A,

s, 22(f).”

The Town’s November 18" and 25 supplemental responses

In its November 18, 2019 response, the Town indicated that it objects to Attorney Ames’ appeal because it is unripe. The Town explained that Attorney Ames’ request was “.. . made on November 8, 2019 to the Town Administrator and the Chair of the Advisory Committee, and not to the Town’s Record Access Officer. As such, the request was taken to be made under the provisions of the Open Meeting law, and Mr. Ames was provided with redacted copies of the requested minutes within ten calendar days in compliance with G.L. c. 30A, s. 22(f).” The Town noted that if the request was made under the Public Records Law, a response would be provided within ten business days or by November 25, 2019.

On November 25, 2019, the Town provided another set of responsive records and indicated in its response that the requested records have been redacted “. . . to withhold those portions of the minutes that are protected from disclosure under the attorney client privilege and/or exemption (c) of the Public Records Law.”

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). Second clause of Exemption (c) — privacy

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). Only the second clause of Exemption (c) is applicable to this determination. 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

Patrick J. Ward SPR19/2328 Page 3 December 3, 2019.

(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.

Under Exemption (c), the Town explained that “[t]he name of the private party to the referenced settlement agreement that was reached with the Town and was the subject of discussion at these meetings is withheld under the confidentiality provision of the settlement agreement and the second clause of the privacy exemption, because disclosure of the party’s identity constitutes an intimate detail of a highly personal nature to which no paramount public interest in disclosure applies.”

Confidentiality clause

Please be advised that no government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252, 263 (D.C. Cir. 1982); see also Ackerly v. Ley, 420 F.2d 1336, 1340 n.3 (D.C. Cir. 1969) (pledge of confidentiality cannot in and of itself override the Federal Freedom of Information Act). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom of Information Act with a private agreement). Therefore, the confidentiality clause cannot be used to circumvent the mandatory disclosure provision of the Public Records Law.

As such, based on the Town’s response, I find the Town has not demonstrated how disclosure of the name of the private party would cause personal embarrassment to an individual

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of normal sensibilities; or how the name constitutes intimate details of a highly personal nature under Exemption (c). See PETA, 477 Mass. At 292, Additionally, the Town has not established how the party’s privacy interest substantially outweighs the public interest in obtaining the requested information, nor indicated how it is the type of information the second clause of Exemption (c) is designed to protect. Id. The Town must clarify these issues.

Common law attorney-client privilege

The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk, 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision .. . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993),

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. See Suffolk, 449 Mass. at 450 n.9; 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). Records custodians seeking to invoke the common law attorney- client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460.

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, § 10A(a).

The Town asserted that “[t]he redacted portions of the minutes are protected from disclosure under the attorney client privilege because they constitute confidential communications between these bodies and legal counsel undertaken for the purpose of obtaining legal advice or assistance.” The Town cited Suffolk.

Although the Town claims that the redacted portions “. . . constitute confidential communications between these bodies and legal counsel undertaken for the purpose of obtaining legal advice or assistance[,]” it is unclear whether the privilege has been waived as required by Suffolk. Please note that disclosing attorney-client communications to a third party generally undermines the privilege. Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). The Town must also provide a privilege log in accordance with the Public Records Law.

Patrick J. Ward De SPR19/2328 Page 5 December 3, 2019

Conclusion

Accordingly, the Town is ordered to provide Attorney Ames with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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,

Rlecea Muay.

Rebecca S, Murray Supervisor of Records

cc: Brooks Ames, Esq.