Commonwealth Transparency v. Bridgewater Raynham Regional School District (SPR 20213379)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 10, 2022 SPR21/3379 Judith A. MacDougall Records Access Officer Bridgewater-Raynham Regional School District 166 Mt. Prospect Street Bridgewater, MA 02324 Dear Ms. MacDougall: I have received the petition of OpenCommonwealth.org appealing the response of the Bridgewater-Raynham Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 4, 2021, OpenCommonwealth.org requested the following: For the time period December 1, 2020 through December 3, 2021, please provide the following; 1. Any and all public records requests seeking public records of [the] school(s), and/or district(s). 2. All metadata from the requests in #1 above including all contact information of the requestor, including but not limited to emails and text messages. 3. All electronic communications regarding #1 above including but not limited to emails and text messages. 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. The School responded on December 24, 2021 providing numerous records in redacted form, and withholding other. Unsatisfied with the School’s response, OpenCommonwealth.org appealed, and this case 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 agency or 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

Judith A. MacDougall SPR21/3379 Page 2 January 10, 2022 municipality 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. Att’y 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. Current Appeal In the appeal petition, OpenCommonwealth.org argues the following: The RAO admits to withholding documents in their entirety, and has provided no privilege log for same. These documents are public records. These documents are responsive to the request. Contrary to the position of the District, these documents enjoy no privilege and may not be withheld. The School’s December 24th Response In its December 24, 2021, 2021 response, the School cites Exemption (a) and G. L. c. 71, § 34D, along with Exemption (c) of the Public Records Law. The School also cites the attorney- client privilege for withholding other records in their entirety. 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 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.

Judith A. MacDougall SPR21/3379 Page 3 January 10, 2022 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 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 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 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. Under Exemption (c), the School argues that “with respect to [the] request, the personal email addresses of private individuals have been redacted.” Personal email addresses, which are generally not listed within any sort of directory or available by any other means of a public search, similar in many respects to unlisted phone numbers, favor a finding of non-disclosure. The public interest in disclosure of this information does not outweigh the privacy interests associated with the redacted information. Accordingly, I find that the School has met its burden in redacting personal email addresses and student identification information from the responsive records. Additionally, where the School explains that “student names and other information which would permit the identification of individual students were redacted from the responsive records,” I find that this information may also be properly redacted under Exemption (c). Where the names and identifying information of students may be redacted under Exemption (c), I decline to address the School’s claims under Exemption (a) and 603 C.M.R. 23.07(4) for redacting this information. 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

Judith A. MacDougall SPR21/3379 Page 4 January 10, 2022 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 not inspect the record but 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 School states the following The District is also in possession of emails responsive to [the] request. The District has not produced these emails which consist of communications between counsel and the District for the purpose of obtaining legal advice regarding public records requests. These communications have not been shared with the public and are therefore protected by the attorney-client privilege. In this case, the School has not met its burden to respond to the request under the Public Records Law. While the School has explained the grounds upon which the privilege is being claimed, the School has not provided a detailed description of each record, including the names of the author and recipients, and the date. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide OpenCommonwealth.org with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, . I - . ~ ·- ,''. . , ' Rebecca S. Murray Supervisor of Records cc: OpenCommonwealth.org