Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20221127)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2022 SPR22/1127 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iverson: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 29, 2022, Ms. Shelly requested internal and external investigation reports regarding three certain city employees from 2015 to the present. On May 12, 2022, the City informed Ms. Shelly that it was withholding responsive records in their entirety pursuant to the attorney-client privilege, Exemption (a), and Exemption (c) of the Public Records Law. Unsatisfied with the City’s response, Ms. Shelly petitioned this office and this appeal, SPR22/1127, 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. 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

Paul J. Iverson SPR22/1127 Page 2 May 20, 2022 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 City’s May 12th Response In its May 12, 2022 response, the City stated, “records which may be responsive to your request include two internal investigation reports, investigative documents, and one grievance report…” The City also informed Ms. Shelly that it was withholding the responsive records pursuant to the attorney-client privilege, Exemption (a) and Exemption (c) of the Public Records Law. Exemption (c) Exemption (c) permits the withholding of: 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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). 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).

Paul J. Iverson SPR22/1127 Page 3 May 20, 2022 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. In its May 12, 2022 response, the City stated: The reports, and their findings, conclusions and recommendations, and investigative documents, constitute personnel records, because the information contained therein is of a personal nature and pertains to specific and identifiable employees, and would be considered useful in making employment decisions regarding those employees … Further, the complaints, allegations, findings and conclusions would likely be embarrassing to a person of normal sensibilities and likely to cause damage to one or more employees’ reputations, making their disclosure an unwarranted invasion of personal privacy. The reports and investigative documents, therefore, are exempt from disclosure under both the first and second clauses of exemption (c) of G.L. c. 4, §7(26), which exempts from the definition of a public record, “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…” While the City has demonstrated using the PETA factors that portions of the records may fall under Exemption (c), it is unclear how the records may be withheld in their entirety. The City must demonstrate whether there are portions of the records that may be segregated and redacted pursuant to Exemption (c). 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.

Paul J. Iverson SPR22/1127 Page 4 May 20, 2022 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). In its May 12, 2022 response, the City stated, “one of the reports contain communications between counsel and client made as part of internal investigations undertaken for the purposes of providing legal advice, and are therefore also protected from disclosure by the attorney-client privilege.” Despite claiming that portions of one of the reports are protected by the privilege, the City has not met its burden in demonstrating how the privilege applies. For example, the City did not provide a privilege log or index. Where G. L. c. 66, § 10A(a) provides that a records custodian provide the names of the author and recipients of the record, I find the City must clarify this. Further, it is unclear how the identified communications satisfy the elements of the Suffolk case. Specifically, the City must clarify how the communications as a whole were made in confidence, and not waived. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Paul J. Iverson SPR22/1127 Page 5 May 20, 2022 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its May 12, 2022 response, the City stated: Lastly, records responsive to your request include a grievance report with associated documents (“grievance report”). The grievance report is the subject of ongoing executive session proceedings before the Framingham School Committee, and therefore are not public records. In reaching this conclusion, we have relied on M.G.L. c. 30A, § 22(f)… M.G.L. c. 30A, § 22(f) states in pertinent part: [T]he minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21. The City’s response pertaining to a portion of the responsive records raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the AGO for a determination on the status of the grievance report. Conclusion As stated above, it is unclear how the investigation reports and documents specifically may be withheld in their entirety pursuant to Exemption (c). Further, where the City has not provided a privilege log for responsive communications included in one of the investigative reports, it is unclear how the attorney-client privilege applies. Accordingly, the City is ordered to provide Ms. Shelly 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 this response to this office at pre@sec.state.ma.us.

Paul J. Iverson SPR22/1127 Page 6 May 20, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Olufunmilola Shelly