James E. Neyman v. Worcester, City of (SPR 20222928)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2023 SPR22/2928 Michael Vigneux Records Access Officer City of Worcester 455 Main Street, Suite 309 Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Attorney James Neyman, on behalf of his client, appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2021, Attorney Neyman’s client requested emails exchanged between MassHire directors and other staff members for the dates ranging from May 1st, 2020, to December 31st, 2020. The City responded on September 22, 2022. Unsatisfied with the response, Attorney Neyman petitioned this office and this appeal, SPR22/2928, 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. 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. If there are any fees associated with a response a written, good faith estimate must be 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

Michael Vigneux SPR22/2928 Page 2 January 6, 2023 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 City’s September 22nd response In its September 22, 2022 response, the City cited Exemption (c) of the Public Records Law in support of redactions made in the requested records and also cited attorney-client privilege to withhold the requested records. 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). 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 stated that “[t]he second clause of exemption (c), the privacy exemption is applicable when the requested records implicate privacy interests.” The City further argued that “[w]ith respect to the requested records, the City has determined that the privacy interests associated with the disclosure of portions of the requested record (personal phone number) outweighs the public interest in the disclosure. Accordingly, the City has redacted this information from the requested records.”

Michael Vigneux SPR22/2928 Page 3 January 6, 2023 I find that the City has met its burden to redact the personal phone number under Exemption (c) of the Public Records Law. 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. 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 response, the City stated, “…please be advised that 22 email communications are being withheld pursuant to attorney-client privilege[.]” The City further explained that “[m]essages have been withheld as a confidential communications between a government entity and its legal counsel.” Based upon the City’s response, I find the City has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. While the City has stated that the information withheld contains confidential information between a government entity and its legal counsel, it is unclear whether those 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. Further, the City has not stated whether the communications were made in confidence or whether the privilege as to these communications has been waived. The City must also provide a privilege log pursuant to G. L. c. 66, § 10A(a). Consequently, I find the City has not met its burden to withhold the responsive records under the attorney-client privilege. Conclusion Accordingly, the City is ordered to provide Attorney Neyman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Michael Vigneux SPR22/2928 Page 4 January 6, 2023 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. Attorney Neyman may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: James Neyman, Esq.