Collin Dias v. Fall River, City of - Public Schools (SPR 20210989)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/0989 Debra Cabral Records Access Officer City of Fall River Public Schools 417 Rock Street Fall River, MA 02720 Dear Ms. Cabral: I have received the petition of Colin Dias appealing the response of the Fall River Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 19, 2021, Mr. Dias requested the following records: “#1Any report made following an investigation into alleged inappropriate conduct by [a named individual] #2Any document or contract handed to any member of the School Committee to sign stating they will not copy, show, or reproduce any report following an investigation into alleged inappropriate conduct by [a named individual].” Previous appeals This request was the subject of previous appeals. See SPR20/0248 Determination of the Supervisor of Records (February 17, 2021 and April 2, 2021). On March 2nd the School provided an un-redacted copy of the report as a result of a request from the Supervisor for an in camera review. In my determination dated April 2nd, I found that the School did not meet its burden to withhold the report in its entirety. The School provided a response on April 16, 2021. Unsatisfied with the response, Mr. Dias appealed and SPR21/0989 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). 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

Debra Cabral SPR21/0989 Page 2 May 4, 2021 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 School’s April 16th response On April 16th the School responded and produced a redacted responsive document. The School cited Exemptions (c) and (f) as well as the attorney-client privilege in support of the redactions. 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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. 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. 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). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of

Debra Cabral SPR21/0989 Page 3 May 4, 2021 any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 ass. 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 response, the School asserted that the redactions made under Exemption (c) were made because “… the disclosure … may constitute an unwarranted invasion of personal privacy. Attorney General v. Asst Comm’r of the Real Property Dept. of Boston, 380 Mass. 623, 625 (1980).” The School explained that the document contained, “… details about disability status, medical condition, family disputes and other personal details of specifically named employees, all of which the Supreme Judicial Court has deemed to be the type of information that qualifies as ‘intimate details of a highly personal nature’. Id. at 626 n2.” The School performed the balancing test and asserted that the public interest in the disclosure of this information does not outweigh these privacy interests. 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 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other

Debra Cabral SPR21/0989 Page 4 May 4, 2021 potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response regarding the Exemption (f) redactions, the School stated, “… disclosure of the statements of persons who volunteered information to the Attorney … as part of this investigation would have a harmful and chilling effect on the willingness of witnesses to cooperate in such future investigations.” 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, 450 n.9 (2007); 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. The School explains that “[t]he attorney-privilege applies … because there was an attorney-client relationship between the School Committee and [the] Attorney … and the documents are comprised of communications between the School Committee and [legal counsel] that meet the elements established in Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass, 444 (2007) .” The School further asserted that that the communications were “… (1) … received from the client during the course of the client’s search for legal advice … (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.” The School provided a privilege log in support of the attorney-client privilege. Upon a review of the redacted material compared with the previously submitted un- redacted report and review of the School’s response, I find that the School has not met its burden to withhold all the redacted information under the Public Records Law. Conclusion Accordingly, the School is ordered to review the redactions and provide a response to Mr. Dias made in accordance with the Public Records Law, its Access Regulations and this order 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.

Debra Cabral SPR21/0989 Page 5 May 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colin Dias