Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20192498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division · Rebecca S. Murray Supervisor ofR ecords January 2, 2020 SPR19/2498 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, § IOA; 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." Previous appeal The requested record was the subject of a previous appeal. See SPRl 9/2328 Determination of the Supervisor of Records (December 3, 2019). In my December 3rd determination, I found that the Town had not met its burden to withhold the name of a private party under Exemption (c). I also found that the Town had not met its burden to withhold portions of the records under the attorney-client privilege. Accordingly, I ordered the Town to provide Attorney Ames with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Town responded on December 27, 2019, providing additional information regarding its Exemption (c) and attorney client privilege claims. 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). 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

Patrick J. Ward SPR19/2498 Page 2 January 2, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 ofE xemption (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 (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 nµmber).

Patrick J. Ward SPR19/2498 Page 3 January 2, 2020 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 asserts that where the claim was settled for $153,669.70, there is a need to protect the identity of the claimant. The Town explains that "[f]irst, the fact that the claimant received a large amount of money could subject the claimant to significant unwanted attention, or worse, criminal enterprise. Second, the fact of the claim and resulting settlement could cast the claimant in an unfavorable light, affecting the claimant's reputation." The Town also contends that" ... there is no public interest in the identity of the claimant. The fact of the settlement, the employees involved, and the financial details of the settlement have previously been disclosed. In this regard, the public interest has been met. In this particular case, balancing the public's right to know against the claimant's privacy interests continues to support non-disclosure of the claimant's identity." Based on the Town's response, it remains unclear how the name of the claimant can be withheld under Exemption (c) of the Public Records Law, Pursuant to the PETA analysis, it remains uncertain how the name of the claimant constitutes an intimate detail of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, the Town did not address whether the name of the claimant is available from other sources. See PETA, 477 Mass. at 292; SPR19/2328. Common law attorney-client privilege The Supreme Judicial Comi 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 Comi has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested rep01is 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 i:lS 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.

Patrick J. Ward SPR19/2498 Page 4 January 2, 2020 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, § lOA(a). The Town explains that" ... the meetings pertained to the proposed settlement of the claim against the Town. At these meetings, members of the Town's Select Board, the body that must approve the settlement, and the Town's Advisory Committee, the body that must approve access to the Town's funding source for purposes of the settlement, met with legal counsel for the purpose ofreceiving legal advice pertaining to the proposed settlement." The Town states that "[t]hese meetings were conducted in executive session to preserve the confidentiality of the discussions, and the privilege accorded these communications has not been waived ...." The Town contends that "[bJ ecause the discussions that took place in these meetings in executive session were 'confidential communications between public officers and employees and governmental entities and their legal counsel unde1iaken for the purpose of obtaining legal advice or assistance', they are clearly protected from disclosure under the attorney client privilege, and were properly withheld." The Town cited Suffolk, and also provided a privilege log. Based on Attorney Ames' appeal petition, it appears that he is not appealing the Town's attorney-client privilege claim. Conclusion Accordingly, the Town is ordered to provide Attorney Ames with a response to the request, provided in a maimer 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, ~~ Rebecca S. Murray Supervisor of Records cc: Brooks Ames, Esq.