Allen Waller v. Marblehead, Town of (SPR 20200800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2020 SPR20/0800 Kyle Wiley Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Allen Waller appealing the response of the Town of Marblehead (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 12, 2019, Mr. Waller requested the following records: “1. All correspondence, memoranda, and e-mails related to the litigation and the countersuit by the Town 2. Names of all Town personnel engaged in managing the litigation 3. All work authorizations and invoices for the litigation[.]” Previous time petition The requested records were the subject of a previous time petition. See SPR19/0763 Determination of the Supervisor of Records (April 22, 2019). Please refer to the determination in SPR19/0763 for analysis of this issue. Subsequent to the time petition, Mr. Waller modified his request. After this modification, there were several communications between Mr. Waller and the Town, resulting in the Town providing several responses. The Town provided its last response on February 20, 2020. In this response, the Town provided responsive records in redacted form pursuant to Exemptions (c) and (d) of the Public Records Law, as well as the attorney-client privilege and work product doctrine. G. L. c. 4, § 7(26)(c), (d). The Town also indicated that it did not possess certain records. Unsatisfied with the Town’s response, Mr. Waller petitioned this office and this appeal, SPR20/0800, was opened as a result. 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

Kyle Wiley SPR20/0800 Page 2 June 1, 2020 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 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 February 20th response In its February 20, 2020 response, the Town states that it does not have records responsive to items 2 and 3. The Town also indicates that portions of the responsive records were redacted pursuant to Exemptions (c) and (d) of the Public Records Law. Some records were also redacted under the attorney-client privilege and work product doctrine. Exemption (c) Exemption (c) of the Public Records Law 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, 432-33 (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).

Kyle Wiley SPR20/0800 Page 3 June 1, 2020 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 states that it “. . . has withheld and/or redacted as appropriate, any information relating to any individual, the disclosure of which would constitute an unwarranted invasion of privacy under G.L. c. 4, § 7 cl 26th(a) [sic], the so-called ‘privacy exemption.’” Based on the Town’s response, it is unclear what type of information relating to an individual was redacted from the responsive records or how the redacted portions fall within the second clause of Exemption (c). The Town has neither demonstrated how the redacted information constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the Town has not identified a privacy interest that outweighs the public interest in disclosure. See id. at 291. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based

Kyle Wiley SPR20/0800 Page 4 June 1, 2020 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). Under Exemption (d), the Town states “[t]o the extent that some of the emails constitute ‘open frank, inter-agency and intra-agency deliberations regarding government decisions,’ their contents have been withheld and/or redacted as appropriate pursuant to [Exemption (d)].” The Town cites DaRosa. Based on the Town’s response, it is unclear whether the “open frank, inter-agency and intra-agency deliberations regarding government decisions,” pertain to an ongoing deliberative process. It is additionally uncertain how the deliberative process would be tainted if the redacted portions were released. Common law attorney-client privilege 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 (2007); 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). Under the attorney-client privilege, the Town asserts that “. . . information constituting confidential communications between the Town and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected by attorney-client privilege, and has

Kyle Wiley SPR20/0800 Page 5 June 1, 2020 thus been withheld and/or redacted” and cites Suffolk. The Town further indicates that the redaction of “. . . [t]he Board of Health legal invoices related to the Maverick litigation have been done in accordance with the attorney-client privilege and the attorney-work product doctrine. To the extent that any invoice entries include the description of legal services that disclose legal strategy, specific contents of confidential communications between the attorney and client, or contain conclusions, opinions, notes or summons, legal research or legal theories, they have been redacted accordingly.” Based on its response, I find the Town must provide a privilege log in accordance with G. L. c. 66, § 10A(a). The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Additional records In his appeal petition, Mr. Waller claims that the Town has failed “. . . to provide copies of contracts which the Town is statutorily required to have possession of [and] documentation for lumpsum billings customarily required for invoice payment.” Based on the above claims, I find the Town must clarify whether it possesses responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Conclusion Accordingly, the Town is ordered to provide Mr. Waller with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Allen Waller