Carlene C. Hamlin v. South Hadley, Town of - Town Clerk (SPR 20221571)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2022 SPR22/1571 Sarah Gmeiner Town Clerk 116 Main Street Room 109 South Hadley, MA 01075 Dear Ms. Gmeiner: I have received the petition of Carlene Hamlin appealing the response of the Town of South Hadley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 24, 2022, Ms. Hamlin requested “any and all emails and correspondence to or from” three named individuals. Previous Appeal This request was the subject of a previous appeal. See SPR22/1347 Determination of the Supervisor of Records (June 23, 2022). In the June 23rd determination, the Supervisor ordered the Town to clarify its claims under Exemption (c) of the Public Records Law, and the attorney- client privilege. Subsequently, the Town responded on July 7, 2022. Unsatisfied with the Town’s response, Ms. Hamlin further 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

Sarah Gmeiner SPR22/1571 Page 2 July 22, 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. The Town’s July 7th Response In its July 7, 2022 response, the Town cites Exemption (c) of the Public Records Law, and the attorney-client privilege for withholding responsive records. 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 a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 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 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). 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.

Sarah Gmeiner SPR22/1571 Page 3 July 22, 2022 Under Exemption (c), the Town argues the following: The Town has withheld email communications between [two individuals] that involve complaints by [a third person] against [Ms. Hamlin] because said communications were used to make decisions regarding [Ms. Hamlin’s] employment with the Town. Moreover, disclosing said communications would result in personal embarrassment to an individual of normal sensibilities in [the third person’s] situation, as her complaint arose from fraught interactions with [Ms. Hamlin] that emotionally traumatized her. As [the third person] is currently an employee in good standing with the Town and [Ms. Hamlin is] no longer a Town employee, there is no public interest in disclosing said documents, let alone a public interest that outweighs the seriousness of invading [the third person’s] privacy. Although the Town has provided some information concerning the balancing test described above, the Town has not explained whether the materials being sought contain intimate details of a highly personal nature. Additionally, the Town has not explained whether the same information is available from other sources. Further, the Town must explain whether segregable portions of the emails can be provided. See G. L. c. 66, § 10(a); 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). The Town must clarify these matters. 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 attorney-client privilege, the Town argues the following:

Sarah Gmeiner SPR22/1571 Page 4 July 22, 2022 The Town has withheld email communication between [2 named individuals] and Town Counsel because (1) said communications were received from the Town during the course of its search for legal advice from Town counsel in its capacity as such; (2) said communications were made in confidence; and (3) the privilege as to said communications has not been waived. Additionally, in its July 7th response, the Town provides a privilege log indicating the dates, authors, recipients, and descriptions of the records being withheld under the attorney-client privilege. Where the Town has provided the information required under G. L. c. 66, § 10A(a), I find the Town may properly withhold the items listed in its July 7th privilege log. Conclusion Accordingly, the Town is ordered to provide Ms. Hamlin 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. Sincerely, Manza Arthur Supervisor of Records cc: Carlene Hamlin Alexander Castro, Esq.