Louisa M. Moller v. Sherborn, Town of - Town Administrator (SPR 20201206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2020 SPR20/1206 David Williams Town Administrator Town of Sherborn 19 Washington Street Sherborn, MA 01770 Dear Mr. Williams: I have received the petition of Louisa Moller of WBZ-TV appealing the response of the Town of Sherborn (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 24, 2020, Ms. Moller requested “[a]ll materials related to internal affairs investigations and town investigations of Police Chief Richard Thompson.” Ms. Moller later clarified her request on June 24, 2020 and July 9, 2020, to include “. . . all investigations into Chief Thompson, ordered by you, HR and internal, during his tenure . . . opened and closed” and “. . . all investigations into chief, by outside parties, by you, by the town, by the police department[,]” respectively. The Town responded on July 17, 2020, denying access to responsive records pursuant to Exemptions (c) and (f) of the Public Records Law, as well as the common law attorney-client privilege. G. L. c. 4, § 7(26)(c), (f). Unsatisfied with the Town’s response, Ms. Moller petitioned this office and this appeal, SPR20/1206, was opened as result. 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. 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

David Williams SPR20/1206 Page 2 August 3, 2020 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 July 17th response In its July 17, 2020 response, the Town states that “. . . it has documents responsive to your request, as clarified, but is withholding such records pursuant to exemptions (c) and (f).” 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). 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. 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 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). As a 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).

David Williams SPR20/1206 Page 3 August 3, 2020 Under the first clause of Exemption (c), the Town states that it is “. . . withholding the Police Chief’s personnel information and investigatory materials pursuant to exemption (c) of the Public Records Law.” Citing Wakefield and other case law, the Town explains that “[it] has not received authorization to produce contents of the Police Chief’s personnel file and records, and, therefore cannot disclose same in response to this request.” Internal affairs records Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the “ordinary evaluations, performance assessments, and disciplinary determinations” included in the public records exemption for “personnel [file] or information” for other public employees due to the significance of maintaining the transparency of the police department’s internal affairs process. Worcester, 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police internal affairs investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the public’s trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry’s full and fair assessment of a police department’s internal investigation of its officer’s actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights. Id., citing Globe Newspaper Co., 419 Mass. at 866. In light of the Worcester decision described above, as well as the public interest in disclosure of internal affairs records, I find the Town has not met its burden to withhold the responsive records, in their entirety, pursuant to the personnel clause of Exemption (c); specifically, it is unclear why the records are not public as determined by Worcester. Second clause of Exemption (c) – privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a

David Williams SPR20/1206 Page 4 August 3, 2020 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 the second clause of Exemption (c), the Town states “[a]fter [its] diligent review of its records responsive to your request, investigatory materials related to Police Chief will be withheld in their entirety since they involve details of a highly personal nature involving the Police Chief, including, but not limited to, details regarding familial status, family disputes and reputation in the community.” The Town further states that “. . . internal affairs matters involving Chief Thompson, a specifically named individual, contains unresolved allegations, and, as such, the release of the requested records at this time while the investigation is ongoing would implicate the privacy rights of said individual and the other individuals involved in said investigation. Release of allegations prior to disposition can result in innuendo and speculation as to the subject’s reputation and professional competence. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 292 (1979).” The Town explains that “[s]uch speculation can adversely affect the subject’s standing in the community as well as the subject’s ability to perform the subject’s current job or obtain future employment. Id. Accordingly, in cases where a resolution of allegations has yet to occur, the person at issue has a privacy interest in such allegations, and the nature of the allegations may be considered an intimate detail highly personal in nature. See G.L. c.214, §1B (right against unreasonable invasion of personal privacy); see, e.g., Letter Determination of the Supervisor of Public Records, SPR84/222 (Mar. 6, 1985); see also SPR97/328. Since responsive records contain a discussion of allegations against an individual whose identity is known to you

David Williams SPR20/1206 Page 5 August 3, 2020 regarding allegations of individuals that were not fully resolved, the responsive record is exempt from disclosure in its entirety pursuant to the second clause of exemption (c) of the Public Records Law.” Although the Town claims that the records “. . . involve details of a highly personal nature involving the Police Chief,” the Town did not explain how disclosure would result in personal embarrassment to an individual of normal sensibilities nor whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide any information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92. Please note that although the Town cites G. L. c. 214, § 1B to support its position to withhold responsive records, this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). 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 material 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 on-going investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential 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 v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). 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. Under Exemption (f), the Town states “[t]he Supreme Judicial Court of Massachusetts has ruled that, ‘[t]he inquiry as to what constitutes identifying information regarding an

David Williams SPR20/1206 Page 6 August 3, 2020 individual . . . must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.’ Globe Newspaper Company v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). In other words, the risk of inadvertent disclosure must be viewed from the perspective of those familiar with the persons and the matter. Due to the nature of the request and the underlying investigations, redaction of even significant portions thereof may still reveal identifying details regarding voluntary witnesses and complainants, particularly in light of the nature of the underlying investigation.” The Town explains that after review of the records, “. . . including the investigative materials and witness statements, the identifying details regarding any voluntary witnesses and complainants are inextricably intertwined with other information in the responsive records, such that redaction is insufficient to protect the personal privacy interests of voluntary witnesses and complainants, exemption (f) allows such records to be withheld in their entirety.” Based on the Town’s response, it is unclear whether these witnesses are all voluntary, thereby meriting the protection under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (discussing the appropriateness of redacting the identities of voluntary witnesses). The Town must clarify if any of these witnesses are police officers. Also, although the Town indicates that “. . . the identifying details regarding any voluntary witnesses and complainants are inextricably intertwined with other information in the responsive records, such that redaction is insufficient to protect the personal privacy interests of voluntary witnesses and complainants . . . ,” it is unclear how identifying information could be “inextricably intertwined with other information . . .” such that the records cannot be redacted to preserve the anonymity of voluntary witnesses. Further, although the Town claims the records relate to an ongoing investigation, it is unclear how disclosure of the records, even in a redacted format, “would probably so 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 Town did not provide supporting information to demonstrate how disclosure of the records would compromise or negatively impact its investigative efforts. As such, I find the Town has not met its burden to establish how the responsive records may be withheld in their entirety under Exemptions (c) and (f). See Reinstein, 378 Mass. at 289- 90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In the Town’s response, it indicates that “. . . it has documents responsive to [Ms. Moller’s] request, as clarified. . .” Based on the Town’s response, it is unclear what records the Town possesses that are responsive to Ms. Moller’s request. See G. L. c. 66, § 10(b)(iv) (a written response shall 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). Consequently, the Town must identify the records in its possession that were withheld under the claimed exemptions.

David Williams SPR20/1206 Page 7 August 3, 2020 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 (2017); see also Hanover Ins. Co. v. Rapa & 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 Town claims that “. . . a March 19, 2018, Memorandum (2018 Memo) sent to the Select Board from the Town Administrator with a copy to Town Counsel regarding a 2018 internal affairs matter as well as a March 31, 2015, privileged and confidential memorandum from then Town attorney, Christopher Brown, Esq. of Petrini and Associates, P.C. to the Select Board regarding a review of a Complaint regarding the Police Chief will be withheld under the attorney-client privilege and/or exemptions to the Public Records Law, as cited therein. Specifically, this memorandum constitutes confidential communications between Town officials and its attorneys for the purpose of obtaining legal advice relative to such matter, for which the attorney-client privilege has not been waived, and therefore, that such records may be withheld pursuant to the attorney-client privilege.” The Town cites Suffolk. Based on the Town’s response, it is unclear how the 2018 Memo, sent to the Select Board with a copy to Town counsel, constitutes a communication from a client for the purpose of seeking legal advice. Also, as indicated above, pursuant to G. L. c. 66, § 10A(a), I find the Town must provide a privilege log in accordance with the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Ms. Moller 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.

David Williams SPR20/1206 Page 8 August 3, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Louisa Moller