Norbert Tschakert v. Salem State University (SPR 20201481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10, 2020 SPR20/1481 Rita P. Colucci, Esq. General Counsel Salem State University 352 Lafayette Street Salem, MA 01970-5353 Dear Attorney Colucci: I have received the petition of Norbert Tschakert appealing the response of Salem State University (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 20, 2020, Mr. Tschakert requested: “…any and all communication and documents Dean Barnes or Dean Barnes’ legal counsel which references [Mr. Tschakert, Mr. Tschakert’s name, or Mr. Tschakert’s] position as the endowed chair (and which [Mr. Tschakert] is not already a party to).” Please note, on June 18, 2020, Mr. Tschakert made a separate request for records, and received a response on August 26, 2020. Mr. Tschakert has since paid the fee estimate and received a production of those requested records. Whereas the June 18th request was not the subject of the prior appeal related to the request at issue, SPR20/0954, the issues surrounding the June 18th request and August 26th response will not be addressed in this determination of SPR20/1481. This office opened appeal SPR20/1593 on September 4, 2020 to address the August 26th response and production of records of the June 18th request. Prior appeal The responsive records were the subject of a prior appeal. On June 5, 2020, the University provided Mr. Tschakert with responsive records; however, certain of the communications and attachments were withheld under the common law attorney-client privilege and Exemption (c) of the Public Records Law. As a result of the June 5th response, Mr. Tschakert petitioned the Supervisor of Records (Supervisor), and the prior appeal was opened. See SPR20/0954 Determination of the Supervisor (June 29, 2020). In my June 29th determination, I found that the University did not meet its burden of specificity in claiming the attorney-client privilege claim under the 3-part test in Suffolk and the 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

Rita P. Colucci, Esq. SPR20/1481 Page 2 September 10, 2020 Public Records Law. See Suffolk Constr. Co, 449 Mass. 450, fn 9; see also G. L. c. 66, § 10A(a). I ordered the University to provide a detailed response to Mr. Tschakert pertaining to the emails withheld under attorney-client privilege. In addition, whereas it was unclear whether the University was claiming both clauses of Exemption (c), I ordered the University to clarify its Exemption (c) claim to withhold certain emails and/or attachments to the emails. Current appeal On July 21, 2020, the University provided a supplemental response to Mr. Tschakert’s May 20th request and the Supervisor’s June 29th determination pertaining to the redacted communications, and the withheld communication under the common law attorney-client privilege. The University also provided further information pertaining to the communications and records withheld or redacted under both clauses of Exemption (c) of the Public Records Law. After receipt of the University’s July 21st response, Mr. Tschakert asked this office for further assistance pertaining to his May 20th request, the June 5th provision of records and the July 21st response from the University. As a result, the current appeal, SPR20/1481, was opened. In his August 17, 2020 letter to this office, Mr. Tschakert indicates that the University’s withholding of any emails pertaining to communications between the General Counsel and Dean Kathleen Barnes cannot be withheld under the attorney-client privilege, that the University is improperly withholding emails claiming privacy concerns, and that it is not credible that the emails provided on June 5th are the only email records responsive. Status of the requestor Mr. Tschakert is further advised that the reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In addition, the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.”).

Rita P. Colucci, Esq. SPR20/1481 Page 3 September 10, 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) (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 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). Common law attorney-client privilege In both its June 5th and July 21st responses, the University asserts that certain email communications have been redacted, and another email was withheld in its entirety, under the common law attorney-client privilege, as recognized by Suffolk Constr. Co., Inc. v. DCAM, 449 Mass. 444 (2008). There is an implicit assumption that a governmental entity “may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice.” Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm’r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the “general rule” that when matters are “communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony.” Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-

Rita P. Colucci, Esq. SPR20/1481 Page 4 September 10, 2020 client relationship exists, but that, with respect to the privileged materials: (1) 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) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997); 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 that the Supervisor, “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). With its June 5th response, the University provided Mr. Tschakert with emails Numbered 1-4 in redacted format, withholding the redacted portions under the attorney-client privilege. The University withheld email Number 5 in its entirety under the attorney-client privilege. In its July 21st response, the University provided the names and job titles of the author and recipients of the emails; the dates of the emails; the substance of the emails, and the grounds for its claim of protection from disclosure under the attorney-client privilege to withhold redacted portions of emails Numbered 1-4, and for withholding email Number 5 in its entirety under attorney-privilege. Additionally, in your July 21st response, you stated, “[a]s [G]eneral [C]ounsel, I represent the [U]niversity, as a whole, governed and managed by its board of trustees and administrators. Kathleen Barnes’ [Dr. Barnes’] former position as dean rendered her an administrator; consequently, her requests for legal advice and guidance are protected by the attorney-client privilege.” You explained that the communications were made in confidence, and that to had not been waived. Accordingly, based on the University’s July 21st privilege log, I find that the University has met its burden in withholding portions of emails Numbered 1-4, and withholding email Number 5 in its entirety.

Rita P. Colucci, Esq. SPR20/1481 Page 5 September 10, 2020 Exemption (c) Exemption (c) applies to: 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). 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). First clause of (c) - personnel The University provided a January 23, 2020 email from Rosa Taormina (Assistant Director of Operations/Assessment/Accreditation); to an identified email address of an unknown identity; Dr. Kathleen Barnes (now former Dean), and Kathleen Hess (Associate Dean). Hhowever, the University withheld the attached Curriculum Vitaes (CV) of all faculty members in the University’s Bertolon School of Business under the first clause of Exemption (c), as personnel information. 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). In your July 21st response, you explained “[s]ince CV’s are an integral part of the hiring process and chronicle an individual’s entire employment history and accomplishments, they fall within the first clause of exemption (c)…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.” Citing, Worcester Telegram & Gazette Corp., 58 Mass. Ap. Ct. at 5. Moreover, you state, “[i]t is incontrovertible that a CV is a document that serves as an employment application and upon which employment decision[s] are made regarding an employee. I have produced the email but removed the attachment with the CV’s.”

Rita P. Colucci, Esq. SPR20/1481 Page 6 September 10, 2020 Please be advised that in a recent decision from the Attorney General’s Office (AGO) regarding a similar matter, the AGO found that “. . . a resume submitted as part of an employment application falls within a core category of personnel information useful in making employment decisions, and is therefore absolutely exempt from disclosure under the first clause of Exemption (c).” See AGO’s May 7, 2020 letter regarding SPR19/2399 (Determination of the Supervisor of Records (December 10, 2019). Second clause of (c) - privacy In its June 5th and July 21st responses, the University indicates it withheld a January 24, 2020 email and attachment (Email Number 7), and a January 27, 2020 email (Email Number 8) under the second clause of Exemption (c), claiming 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 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 the July 21st response, the University indicates these emails have been withheld because the records contain the perception of an individual regarding the behavior of others toward her and seeking the advice of human resources professionals. The University posits, “[d]isclosure of this confidential information would result in a violation of the individual’s

Rita P. Colucci, Esq. SPR20/1481 Page 7 September 10, 2020 privacy, given that she shared per her private concerns with a human resources professional, and may also subject her to retaliation form those individuals based on her statements. The concerns which she raises are of a personal nature.” Moreover, the University’s July 21st response states, “[i]n terms of the balancing test of this individual’s right to have her confidential communication kept private as opposed to [Mr. Tschakert’s] request to see this information, there is no information to justify [Mr. Tschakert] to know this information that is private, [Attorney Colucci has] not produced the record.” I note that the University presents this explanation for both emails of January 24, 2020 and January 27, 2020, as the parties are the same. In camera inspection In order to facilitate a determination as to the applicability of the University’s Exemption (c) claim to withhold two emails from January 24, 2020 and January 27, 2020 in their entirety, the University must provide this office with an un-redacted copy of these emails for an in camera inspection. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The University may provide this office with a further explanation of its position regarding the applicability of its Exemption (c) claim. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Rita P. Colucci, Esq. SPR20/1481 Page 8 September 10, 2020 Conclusion Accordingly, the University is ordered to provide this office with an un-redacted copy of the January 24, 2020 and January 27, 2020 emails withheld under the second clause of Exemption (c) for in camera inspection 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: Mr. Norbert Tschakert