Greta Jochem v. Northampton Public Schools (SPR 20192512)

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

Rebecca S, Murray Supervisor of Records

January 3, 2020

SPR19/2512 Laura Judd

Northampton Public Schools . 212 Main Street Northampton, MA 01060

Dear Ms. Judd:

I have received the petition of Greta Jochem of the Daily Hampshire Gazette appealing the response of the City of Northampton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 6, 2019, Ms. Jochem requested a copy of the following records: “Emails sent to or by Northampton Schools administrators-including [the] Superintendent ... that mention [certain individuals] or the word ‘investigation’ from the following dates: 1/6/18, 2/1/18, 4/25/18, 4/27/18, 5/1/18, 5/2/18, 5/18/18, 7/19/18 and 8/28/18.”

Previous appeal

_ The requested records were subject of a previous appeal, in which the City agreed to provide a response to Ms. Jochem’s request for public records. See SPR19/2385 Determination of the Supervisor of Records (December, 11, 2019). The City responded on December 5, 2019. Unsatisfied with the City’s response, Ms. Jochem petitioned this office and as a result SPR19/2512 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, § 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 City 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(d)(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

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

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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).

If there are any fees associated with a response, a written, good faith estimate must be 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 City’s December 5" response

In its December 5" response, the City has denied access to the records under Exemptions (a), (c), (f) and attorney-client privilege.

Exemption (a)

Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute.

G. L.c. 4, § 7 (26)(a).

A governmental entity may use the statutory exemption asa basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Based upon a review of the file, it appears that the City’s response did not reference a statute as a basis to deny access to the public records requested.

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

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an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause of Exemption (c) - personnel

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. vy. 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 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 Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, 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). Asa result, certain 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 Westport, 401 Mass. 306, 309 (1987).

Second clause of Exemption (c) - privacy

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

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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.

In its December 5" response, the City asserts, in part, “that the disclosure of the emails, redacted or not, would tend to identify the identity of the complainant, the accused employee, and possibly reveal sensitive information that was made in a complaint to the School District and law enforcement. The City’s position indicates that disclosure would implicate those individuals including the accused employee’s privacy interest in their reputation.” Further, the City asserts that “the correspondences pertain to the workplace investigation — the purpose of the correspondence is to adduce facts that may be used in making employment decisions and decisions on whether mandated reporting to any outside licensing agencies is required.”

Upon review of City’s responses, it remains unclear how all the information constitutes intimate details of a highly personal nature, or how disclosure of the information would result in personal embarrassment to an individual of normal sensibilities. It is also uncertain from the City’s response whether the information is available from other sources, or is the type of information the second clause of Exemption (c) is designed to protect in the manner described in PETA,

Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G, L. c, 66, § 10(a). Accordingly, I find the City has not met its burden to permit nondisclosure of the requested records under Exemption (c). See G. L. c. 4, § 7(26)(c).

Exemption (f)

Exemption (f) permits the withholding of:

investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

G. L. c. 4, § 7(26)(f).

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

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investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass, at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

In its December 5" response, the City explains that the requested correspondences pertain to a complaint that the police department was investigating and the disclosure of such correspondences would prejudice effective law enforcement.

I find the City has not demonstrated how disclosure of the records “would prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Particularly, the City did not provide supporting information to demonstrate how all these records contain identifying information of voluntary witnesses, nor how disclosure would compromise or negatively impact its future investigative efforts. Therefore, I find that the City has not met its burden of specificity in claiming Exemption (f) to withhold the records in its entirety.

Common law attorney-client privilege

In its December 5" response, the City indicates that the “emails concern legal advice ... in connection with the ‘investigation’ [and] those emails are also exempt from ... disclosure as they are attorney-client privileged ...”

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 Constr, Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); 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 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 City did not meet its burden of specificity in claiming the common law attorney-client privilege to withhold responsive communications under Suffolk and the requirements in the Public Records Law. See Suffolk Constr. Co., 449 Mass. at 450; see also G. L. c. 66 §, 10A(a).

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Conclusion

Accordingly, the City is ordered to provide Ms. Jochem with a response to the request provided 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.

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Sincerely,

Rebecca S. Murray

Supervisor of Records

cc: Greta Jochem