Naomi Martin v. Springfield, City of - Public Schools (SPR 20220750)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 11, 2022 SPR22/0750 Melinda Phelps, Esq. Legal Counsel Office of Legal Services Springfield Public Schools 1550 Main Street, 2nd Floor Springfield, MA 01103 Dear Attorney Phelps: I have received the petition of Naomi Martin, of the Boston Globe, appealing the response of the Springfield Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 3, 2022, Ms. Martin requested: [1] [A]ny and all contracts or invoices with outside vendors or private parties for legal, investigative or human resources work from Jan. 1, 2007 through Jan. 30, 2022 pertaining to inquiries related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by students, staff members, and/or coaches[.] [2] [A]ny and all related records to such services provided from Jan. 1, 2007 through Jan. 30, 2022. This includes, but is not limited to: [a] any prepared reports, investigations or reviews [b] any preparatory materials or files, including internal and external communications or electronic correspondence in the possession of the district, school board or school officials [c] service orders, memoranda of agreement/understanding, or other records related to retainment, cost, and scope of work. [d] any emails, statements, news releases, or other communications to families, educators, the media, or the public about the outside vendors’ work[.] The School notes that Ms. Martin modified her request on March 16, 2022, seeking “documents related to outside investigations/third party reviews commissioned by the district (ideally reports and records showing how much they cost) [and] the number of outside investigations that Springfield Public Schools had done during the time period requested.” 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

Melinda Phelps, Esq. SPR22/0750 Page 2 April 11, 2022 Previous appeal This request was the subject of a previous appeal. See SPR22/0677 Determination of the Supervisor of Records (March 31, 2022). SPR22/0677 was closed after the School provided supplemental responses on March 28, 2022 and March 29, 2022. Unsatisfied with the School’s responses, Ms. Martin petitioned this office and this appeal, SPR22/0750, was opened as a result. In an email correspondence on April 4, 2022, Ms. Martin indicates that she is willing “. . . to set aside the issue of investigations that are in progress right now and not completed, and also happy to set aside the issue of emails/correspondence around the investigations for now.” 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 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. 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. 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 School’s March 28th and March 29th responses In its March 28, 2022 response, the School lists 10 investigations and provides a portion of the records. In its March 29, 2022 response, the School indicates that certain records are exempt from disclosure under Exemption (c) and the attorney-client privilege. The School also provided a fee estimate. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating

Melinda Phelps, Esq. SPR22/0750 Page 3 April 11, 2022 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). 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 Prop. 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 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 indicates “[g]enerally, personnel information that is useful in making employment decisions regarding an employee is sufficiently personal to be exempt pursuant to the first clause of exemption (c). . . . Additionally, witnesses have privacy interests. The public records requester is seeking documents that would reveal details of witness

Melinda Phelps, Esq. SPR22/0750 Page 4 April 11, 2022 statements. Those investigatory statements were intended to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation without fear of being harmed or retaliated against. Disclosure, even in redacted form, would have a chilling effect on investigations. The [School] would have to inform potential witnesses that their statement, despite redaction, may end up in a Boston Globe story with enough personally identifying facts for the witness to be identified.” Based on the School’s response, it is unclear how the investigative reports constitute one of the core categories of personnel information, such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under Exemption (c). It is additionally uncertain how the reports, in their entirety, contain intimate details of a highly personal nature. The School must explain whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). 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 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 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 School explains that “. . . in all 10 investigations, [it] referred the matter to outside legal counsel . . . at Bulkley Richardson in Springfield. Emails, legal notes, and other documents exchanged between her and the District for the purpose of investigating an allegation of staff conduct subject to discipline is protected by the attorney-work product doctrine, attorney-client privilege, and deliberative process privilege. Additionally, the final report recommending specific personnel action after gathering facts through the investigative process, applying the law

Melinda Phelps, Esq. SPR22/0750 Page 5 April 11, 2022 and the conclusions reached through the investigation are also so protected.” Citing Suffolk, the School states that its “. . . documents (emails, reports, drafts) sent or received from outside counsel at Bulkley Richardson were created during the [School’s] search for legal advice from [the Attorney], the communications were made in confidence, and the privilege has not been waived. The alleged complainant and victim in each of these matters does not receive a copy of [the Attorney’s] final report. They are only informed by letter of the conclusion.” Although the School claims that the requested records are privileged, the School did not provide a privilege log in accordance with G. L. c. 66, § 10A(a). As such, I find the School has not met its burden in applying the attorney-client privilege to withhold records from disclosure. The School must provide “a detailed description of the record[s], 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” as required by G. L. c. 66, § 10A(a). The School must clarify these matters. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In its response, the School states that “[s]hould such documents that [it] is objecting to based on attorney-client privilege and the privacy exemption permitted under exemption (c), be ordered to be disclosed in redacted form, given the time needed to conduct a records review for documents created or received over the past 15 years, and to conduct the redaction process, the [School] estimates 12 hours for each of the 10 investigations, or 120 hours. With the inability to charge for the first 2 hours, the [School] seeks fees for 118 hours at $25.000 per hour (the hourly rate of the lowest paid qualified person), or $2500 prior to beginning the review and redaction.”

Melinda Phelps, Esq. SPR22/0750 Page 6 April 11, 2022 The School indicates that it is assessing a total of 120 hours to review and redact the 10 reports. However, it is unclear why the School requires 120 hours to complete these tasks. The School must provide additional information explaining why the estimated amount of time is required. The School must provide further details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, although the School claims it requires 12 hours per each report, it is unclear the number of pages there are and how many minutes per page the School requires to review and redact each report. Please note that under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, the School must clarify if it intends to assess fees for redactions under Exemption (c). Conclusion Accordingly, the School is ordered to provide Ms. Martin with a response to the request, 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: Naomi Martin