Alicia Wilson-Gabor v. East Longmeadow, Town of - Public Schools (SPR 20221721)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2022 SPR22/1721 Gordon C. Smith Superintendent of Schools East Longmeadow Public Schools 180 Maple Street East Longmeadow, MA 01028 Dear Superintendent Smith: I have received the petition of Alicia Wilson Gabor appealing the response of the East Longmeadow Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 3, 2022, Ms. Wilson Gabor requested certain emails. Following a series of communications to narrow the request, the School responded on July 26, 2022, providing some records and citing Exemption (c) of the Public Records Law, and the attorney-client privilege for withholding others. Unsatisfied with the School’s response, Ms. Wilson Gabor appealed, and this case was opened as a result. Status of the Requestor In her appeal petition, Ms. Wilson Gabor explains her reasons for requesting records. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Wilson Gabor’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 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

Gordon C. Smith SPR22/1721 Page 2 August 10, 2022 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 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 July 26th Response In its July 26, 2022 response, the School 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). 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

Gordon C. Smith SPR22/1721 Page 3 August 10, 2022 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 argues the following: [R]esponsive documents are ... being withheld because they contain information from a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.... These particular documents contain concerns raised by a member of the community about a faculty member, the disclosure of which would be an unwarranted invasion of their privacy. In reviewing the scope and intent of these documents, it has been determined that the public interest in obtaining these documents are outweighed by the important privacy interests at stake- namely that the release of these documents would have a chilling effect on citizens who wish to raise concerns about educators but also fear potential retaliation for doing the same. In this regard, the information in these documents was generally described to the educator subject to the event and releasing these documents accomplishes no valid purpose for the public that would outweigh the important privacy concerns of the individual who drafted the emails. Based on the School’s response, it is unclear how the responsive records constitute intimate details of a highly personal nature. It is also unclear whether the records are available from other sources, or whether they are the type of information contemplated in PETA. See PETA, 477 Mass. at 292. Additionally, it is unclear which records or categories of records the School intends to withhold. 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). The School 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.

Gordon C. Smith SPR22/1721 Page 4 August 10, 2022 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 School argues that “a large number of the responsive documents contain advice rendered by or matters being reviewed by the School District’s legal counsel. These documents are exempt from disclosure since they are attorney- client privileged.” Although the School provides some information regarding the nature of the records withheld under the attorney-client privilege, I find that in accordance with G. L. c. 66, § 10A(a), 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.” Further, the School must clarify whether the communications were made in confidence and that the privilege as to the communications has not been waived. Conclusion Accordingly, the School is ordered to provide Ms. Wilson Gabor 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: Alicia Wilson Gabor Brendan Hughes, Esq.