Vicki Bejma v. Mansfield, Town of - Town Clerk (SPR 20220827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2022 SPR22/0827 Kevin Dumas Town Manager Town of Mansfield 6 Park Row Mansfield, MA 02048 Dear Mr. Dumas: I have received the petition of Attorney Vicki J. Bejma, on behalf of Triboro Massachusetts News Media Inc., appealing the response of the Town of Mansfield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 21, 2022, David Linton of The Sun Chronicle requested “copies of any and all written and/or electronic correspondence made by [the Town Manager], any staff member of [his] department and the select board regarding the employment of [the] Police Chief . . . including personnel records, his start date, current contract, salary, disciplinary actions and current employment status.” The Town responded on April 4, 2022 providing a copy of an employment agreement, and citing Exemption (c) of the Public Records Law and the attorney-client privilege for withholding other responsive records. See G. L. c. 4, § 7(26)(c). Unsatisfied with the Town’s response, Attorney Bejma 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 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 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

Kevin Dumas SPR22/0827 Page 2 April 25, 2022 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 her appeal petition, Attorney Bejma contends that the withheld information “is payroll information. It is not the type of information that is used to make personnel decisions about individual employees. Furthermore, the disclosure of that payroll information would not constitute an invasion of privacy.” She further argues the following: The public may not have a right to know the particulars of an employee’s health condition. However, the public certainly has a right to know whether the employee is exercising sick leave or collecting paid time off. The public also has a right to whether a public employee is actually performing his or her job or not. This is particularly true in the case of a senior public safety official like the police chief. The Town’s April 4th Response In its April 4, 2022 response, the Town provides “a copy of the employment agreement between the Town and Police Chief,” and states that it is withholding other responsive records pursuant to Exemption (c) of the Public Records Law and the common law attorney-client privilege. See G. L. c. 4, § 7(26)(c). 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

Kevin Dumas SPR22/0827 Page 3 April 25, 2022 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. 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. 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). 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 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 Town argues the following: Other documents potentially responsive to [the] request are being withheld pursuant to G. L. c. 4, § 7(26), Exemption (c), as the same constitute personnel and/or medical files or information and/or other materials relating to a named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. Based on the Town’s response, it is unclear how the responsive records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld 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 matters. Further, the Town must specifically identify the records being withheld. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, ------------------------------- 419 Mass. at 511; 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).

Kevin Dumas SPR22/0827 Page 4 April 25, 2022 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 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 common law attorney-client privilege, the Town argues that it “is not providing any privileged attorney-client communications protected from disclosure under the common law attorney-client privilege recognized in Suffolk Construction v. DCAM, 449 Mass. 444 (2007).” In this case, the Town has not provided any description of the records being withheld under the privilege, nor the names of the authors and recipients, dates, subjects of the records, nor the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). The Town must provide Attorney Bejma with an index or privilege log including the required information. Conclusion Accordingly, the Town is ordered to provide Attorney Bejma with a response to her 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.

Kevin Dumas SPR22/0827 Page 5 April 25, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Vicki J. Bejma, Esq. John Dolan, Esq.