Mitchell I. Greenwald, Esq. v. Lenox, Town of - Public Schools (SPR 20221686)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2022 SPR22/1686 Kerry L. Sullivan Public Records Access Officer Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Attorney Mitchell I. Greenwald appealing the response of the Town of Lenox (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 9, 2022, Attorney Greenwald requested 5 categories of records. Previous Appeal This request was the subject of a previous appeal. See SPR22/1486 Determination of the Supervisor of Records (July 12, 2022). In my July 12th determination, I ordered the Town to provide Attorney Greenwald with a response to his request. Subsequently, the Town responded on July 18, 2022, providing numerous records in redacted form. Unsatisfied with the Town’s response, Attorney Greenwald 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 must not only cite an exemption, but must also state why the exemption applies to the withheld 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

Kerry L. Sullivan SPR22/1686 Page 2 August 2, 2022 or redacted portion of the responsive record. The Town’s July 18th Response In its July 18, 2022 response, the Town cites Exemption (c) of the Public Records Law, and the attorney-client privilege for redacting 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). 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. Under Exemption (c), the Town argues the following: Certain records responsive to [Attorney Greenwald’s] request, related to other employees and non-relevant discussions, have been redacted where they contained information of a sensitive nature implicating the other employee’s privacy interests, and where disclosure would constitute an unwarranted invasion of personal privacy.

Kerry L. Sullivan SPR22/1686 Page 3 August 2, 2022 Based on the Town’s response, it is unclear how the redacted information constitutes 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 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. 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). In his appeal petition, Attorney Greenwald notes that his client, in a grievance, “specifically stated that the actions complained of constituted ‘bullying, in violation of the District’s bullying policy.’” He goes on to argue that “the District has a ‘Protocol of Investigating Bullying Claims’ which requires prompt investigation, and the completion of a particular form. Because the investigation was pursuant to the District’s normal procedures, then documents concerning it, whether or not the attorney eventually received a copy of them, would not be protected and should be produced.” In its response, the Town states that “redactions have been made on the basis of ... the attorney-client privilege.” Based on the Town’s response, it is unclear which specific records have been redacted or withheld pursuant to the attorney-client privilege. Specifically, the Town must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a).

Kerry L. Sullivan SPR22/1686 Page 4 August 2, 2022 Conclusion Accordingly, the Town is ordered to provide Attorney Greenwald with a response to his 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: Mitchell I. Greenwald, Esq.