Peter Culhane v. Milton, Town of - Town Clerk (SPR 20210256)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 18, 2021 SPR21/0256 Susan Galvin Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Peter Culhane appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2020, Mr. Culhane requested the following records: “I. The (unredacted) minutes of the following Executive Sessions held by Milton’s Select Board (formerly known as the ‘Board of Selectmen’): 5 JUL 2018[;] 28 AUG 2018[;] 8 NOV 2018[;] 9 JAN 2019[;] 6 MAR 2019 [and] 18 MAR 2019[.] II. Copies (unredacted) of all intra-town-governmental emails, dated from March 3, 2019 through May 15, 2019, sent by [7 identified individuals] to various recipients, each of whose subject matter lines includes the words, ‘draft Statement of the Select Board regarding . . .’ or ‘draft of statement’ or ‘draft statement,’ as well as any emails in the same chain (related to the draft statement . . .)[.] III. According to [an identified individual], who spoke at a Select Board meeting in April, 2019, then-Chair of the Select Board . . . sent an email to Norfolk County District Attorney Michael Morrissey urging him to commence a criminal investigation of [an identified individual]. He sent this email from a private ‘Yahoo’ mailbox. I request: (1) A copy of the original email . . . sent to the DA, dated July 6, 2018. . . . (2) All responses (in any written form) from the DA (or anyone acting on his behalf) to [an identified individual], dated from July 6, 2018 through May 8, 2019, particularly any emails sent to . . . private Yahoo mailbox or to the Select Board (formerly known as the ‘Board of Selectmen’) or to any of its members; (3) Any additional emails (from any email account) sent from . . . to the DA (or to anyone in the DA’s office), dated from July 6, 2018 through May 8, 2019 . . . (4) Any written responses to . . . July 6, 2018 email (in any written form) from 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

Susan Galvin SPR21/0256 Page 2 February 18, 2021 DA (or from anyone acting on his behalf) . . . or to Milton’s Select Board . . . or to any of its members, dated from July 6, 2018 through May 8, 2109; (5) Any communications (in any written form) from Milton’s Select Board . . . or from any of its members, containing the word, . . . or any word containing the following letters in successive order, . . . to the DA (or to anyone in the DA’s office) dated July 6, 2018 through May 8, 2019.” The Town responded on November 3, 2020, and December 23, 2020, providing certain records and denying access to other portions of the responsive records pursuant to Exemption (c) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town’s response, Mr. Culhane petitioned this office and this appeal, SPR21/0256, was opened as a 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. The Town’s November 3rd and December 23rd responses Request I In its November 3, 2020 response, the Town states, “[t]he executive session minutes you seek are protected, in part, by the attorney-client privilege because they reference discussion between Town Employees and the Office of Town Counsel, made in confidence, for the purpose of giving or obtaining legal advice. The Town cites McCarthy v. Slade Assocs., Inc., 463 Mass. 181 (2012) and Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, to support its position. The Town provided records in redacted form, as well as, a privilege log that identified each of the privileged communications. The Town also states, “. . . a portion of the minutes from the November 8, 2018 meeting have been redacted in accordance with G. L. c. 4, § 7(26)(c). . . . The portions of the minutes that have been redacted . . . contain information relating to a particular former Town employee and their employment by the Town.”

Susan Galvin SPR21/0256 Page 3 February 18, 2021 In his appeal petition, Mr. Culhane states, “[t]he Town of Milton refused to give me the unredacted minutes of all six Executive Sessions, which were held in violation of the Massachusetts Open Meeting Law. The Select Board lied in its mandatorily posted agenda of its July 5, 2018 Executive Session, by saying in its Agenda item # 2, ‘Executive Session (To Investigate Charges of Criminal Misconduct or to consider the Filing of a Complaint).’ that which was untrue.” Where this portion of the request relates to the contents of executive session minutes, this raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination under the Public Records Law at this time. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. Request II With respect to request II, the Town indicates, “[t]he statement you reference in your request was written by the Office of Town Counsel and then conveyed to the Select Board. It was legal advice given by the Office of Town Counsel to its client the Select Board. The draft statement was then revised, through a series of emails between Town Counsel and Town employees including members of the Select Board and the Town Administrator. Those emails are protected by the attorney client privilege because they constitute communications between employees of the Town of Milton and the Office of Town Counsel, made in confidence, for the purpose of giving or obtaining legal advice.” Further, the Town states that it also possesses “. . . emails that were sent between Town employees regarding the advice of the Office of Town Counsel. Those communications are also protected by the attorney client privilege because they, in part, relay and concern legal advice obtained from the Office of Town counsel to the Select Board or Town employees who must understand and help to implement that advice. See Am.’s Test Kitchen, Inc. v. Kimball, No. 1684CV03325BLS2, 2018 WL 2049490, at 2 (Mass. Super. Apr. 2, 2018) . . .” On December 23, 2020, the Town provided a supplemental response and explained that it has “. . . reviewed its responses to this section [II] of your request and determined that there are responsive records that are not protected by the attorney-client privilege that were previously included in the privilege log. The records are not protected by the attorney client privilege because they concern revisions to a document that were discussed in open session on May 6, 2019 by the Select Board. Accordingly, those records are produced herein. Portions of those records have been redacted that show when the emails were sent to me in response to your request because those sections of the records are not responsive to your request.” Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law

Susan Galvin SPR21/0256 Page 4 February 18, 2021 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). 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). Where the Town indicates that the draft statement and emails regarding this request are confidential communications between Town Counsel and the Town’s employees, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Town has met its burden to withhold records responsive to request II under the attorney-client privilege. Request III With respect to III(1), the Town produced a record in redacted form pursuant to Exemption (c). The Town explains that the record was redacted, because “. . . it contains personnel information and information regarding the reputation of a Town employee. Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, 482 Mass. 427, 443 n.17 (2019).” With respect to III(2)-(5), the Town indicates it does not possess responsive records. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under 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. Att’y Gen., 391

Susan Galvin SPR21/0256 Page 5 February 18, 2021 Mass. 1, 9 (1984); Att’y 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 exemption 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 info1mation 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). This exemption 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. Based on the Town’s response, I find the Town has not demonstrated that the redacted information constitutes core categories of records useful in making an employment decision, such as disciplinary, demotion or termination information pertaining to an identified employee. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). Further, it is unclear what type of information was redacted from the responsive record or how the information constitutes intimate details of a highly nature. It is additionally uncertain how disclosure would result in personal embarrassment to an individual of normal sensibilities or whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Mr. Culhane with a response to request III, provided in a manner 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: Peter Culhane