Justin P. Wilson-Gabor v. East Longmeadow, Town of - Public Schools (SPR 20221969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2022 SPR22/1969 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 Justin and 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 May 5, 2022 Mr. Wilson-Gabor, and on June 3, 2022, Ms. Wilson-Gabor, requested certain emails from the School. Previous Appeals This request was the subject of previous appeals. See SPR22/1721 Determination of the Supervisor of Records (August 10, 2022) and SPR22/1722 Determination of the Supervisor of Records (August 10, 2022). In my August 10th determinations, I ordered the School to clarify its claims under Exemption (c) of the Public Records Law and to clarify its claims of attorney-client privilege. See G. L. c. 4, § 7(26)(c). Subsequently, the School responded on August 24, 2022. Unsatisfied with the School’s response, Mr. and Ms. Wilson-Gabor 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). 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 SPR22/1969 Page 2 September 9, 2022 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. The School’s August 24th Response In its August 24, 2022 response, the School provides additional information concerning its previous claim of Exemption (c), and also cites Exemption (f) of the Public Records Law for withholding “an email from an East Longmeadow citizen to the School District dated April 6, 2022.” See G. L. c. 4, § 7(26)(c), (f). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations.

Gordon C. Smith SPR22/1969 Page 3 September 9, 2022 Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the School explains that “a citizen asked the School District to review information about an educator that needed to be thoroughly investigated. This same citizen directly asked for anonymity with regard to her concerns for fear of retribution.” The School goes on to argue that “the concern of retaliation will, in turn, naturally deter people from coming forward. This will jeopardize School District’s ability to access critical information that would otherwise need to be investigated.” Additionally, correspondence from Mr. and Ms. Wilson-Gabor, as well as from the School, indicates that Mr. and Ms. Wilson-Gabor are familiar with the author of the April 6th email. Where it appears Mr. and Ms. Wilson-Gabor know the identity of the individual, I find the School may permissibly withhold the April 6th email from disclosure under Exemption (f), as any redactions to preserve the individual’s identity may be futile in this instance. The inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual. See Globe Newspaper Co., 388 Mass. at 438. Where the April 6th email may be properly withheld under Exemption (f), I decline to address the School’s Exemption (c) claim concerning that email. 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 its August 24th response, the School asks Mr. and Ms. Wilson-Gabor to “confirm whether [they] will limit both appeals to the issues of disclosing the subject email” discussed above. In its response, the School explains that “this confirmation will alleviate the need for the

Gordon C. Smith SPR22/1969 Page 4 September 9, 2022 School District to expend hours of legal fees in creating an attorney-client privilege log as to all other documents which are responsive to both requests, but which also do not appear to be the subject of the dispute.” Please be advised that it is permissible for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). However, in their appeal petition, Mr. and Ms. Wilson-Gabor assert that they “want all the documents requested within [their] original email.” Consequently, the School must provide a detailed index of any records being withheld pursuant to the attorney-client privilege, as required under G. L. c. 66, § 10A(a). Conclusion Although the School may properly withhold the April 6, 2022 email under Exemption (f) as discussed above, the School must provide the detailed index of other records that it intends to withhold under the attorney-client privilege. Accordingly, the School is ordered to provide Mr. and Ms. Wilson-Gabor with a response to their 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: Justin Wilson-Gabor Alicia Wilson-Gabor