Mark Michalowski v. Boston, City of - Public Records (SPR 20222675)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2022 SPR22/2675 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Attorney Mark Michalowski of, Holland & Knight LLP, appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2022, Attorney Michalowski requested the following documents in the possession of the Department’s Hackney Carriage Unit: [1] All documents associated with two or more applications seeking sightseeing automobile permits for open-top double-decker bus tour service in the City submitted at any point between 2014 and the present…[;] [2] Any permits reviewed, denied and/or granted to Uptown Transport Inc. and Historic Boston Tours, LLC. by the Boston Police Department during the relevant period[;] [3] All inspection records, citations, or similar records for Uptown Transport Inc. and Historic Boston Tours, LLC. after permits were granted[;] [4] All records relating to the applications and permits identified…and associated with the listed Hackney Carriage Unit applications and licenses…[;] [5] All records in the possession of the Boston Police Department that discuss, describe or otherwise relate to changes made to Rule 404 by [the] former Police Commissioner…in or around June 2019…[.] Previous appeal This request was the subject of a previous appeal. See SPR22/2200 Determination of the Supervisor of Records (October 11, 2022). The City responded on October 31, 2022. Unsatisfied with the response, Attorney Michalowski petitioned this office and this appeal, SPR22/2675, was opened as a result. 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

Shawn A. Williams, Esq. SPR22/2675 Page 2 December 5, 2022 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. 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. The City’s October 31st Response In its October 31, 2022 response, the City produced numerous records and cited Exemption (c) to redact portions of the requested records pursuant to the Public Records Law and also cited attorney-client privilege to withhold certain records. 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. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of

Shawn A. Williams, Esq. SPR22/2675 Page 3 December 5, 2022 records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., 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). 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 response, the City advised, “[t]he responsive records are redacted to omit Social Security Numbers, birthdates, and personal phone numbers. The privacy interest in this information relates to the concerns for identity theft. The public interest in disclosure does not outweigh this privacy interest. The information is not available in this form from another public source. G. L. c. 4, § 7 (26) (c).” Upon review, the City may redact social security numbers and personal phone numbers. However, based on the City’s response, it is unclear how the birthdate can be 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. 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.

Shawn A. Williams, Esq. SPR22/2675 Page 4 December 5, 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 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 response, the City stated, “[o]ne (1) email is redacted to omit correspondence from or to a Boston Police Department Legal Advisor. This record consists of attorney-client privileged communications. Suffolk Const. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). The redacted portion consists solely of communications between a Boston Police Department Legal Advisor and others within the Boston Police Department. Such records contain information between an attorney and client related to ‘the client’s search for legal advice from the attorney in his capacity as such.’ All of these communications “were made in confidence.’ In all cases ‘the privilege as to these communications has not been waived.’ The Client is the City of Boston. The date, sender, recipient, and subject information remains unredacted.” Upon review, I find that the City complied with attorney-client privilege and although the text of the communication was redacted, the Department left intact the emails header information which included a date, sender, recipient, and subject information constituting a privilege log. Consequently, I find that between the requested records produced and the index that was provided, the Department may withhold records pursuant to the attorney-client privilege. Conclusion Accordingly, the City is ordered to provide Attorney Michalowski with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Mark Michalowski, Esq.