Thomas Grillo v. Southborough Town Administrator (SPR 20230401)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2023 SPR23/0401 Mark Purple Town Administrator Southborough Town Hall 17 Common Street Southborough, MA 01772 Dear Mr. Purple: I have received the petition of Thomas Grillo, of the Boston Globe, appealing the response of the Town of Southborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 16, 2023, Mr. Grillo requested “copies of the surveys completed by police department staff that were sent from [the Town Administrator’s] office last year.” The Town initially responded on February 23, 2023. Unsatisfied with the response, Mr. Grillo appealed and this case was opened as a result. While this appeal was pending, the Town provided a supplemental response on March 10, 2023, citing the attorney- client privilege, as well as Exemptions (c) and (f) of the Public Records Law for withholding responsive records. 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 or redacted portion of the responsive record. 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

Mark Purple SPR23/0401 Page 2 March 14, 2023 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 Town’s March 10th Response In its March 10, 2023 response, the Town Cites Exemptions (c) and (f) of the Public Records Law, and the attorney-client privilege for withholding responsive records. See G. L. c. 4, § 7(26)(c), (f). 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: Here, the surveys in question involve certain conduct by [the] Chief [of Police] that was directed toward his subordinates in the Southborough Police Department. Naturally, the surveys contain descriptions of the Chief’s conduct. Not only are said descriptions available from other sources, but they also contain intimate

Mark Purple SPR23/0401 Page 3 March 14, 2023 details of a highly personal nature which caused the subjects of the Chief’s conduct considerable distress and would surely result in personal embarrassment to the subjects. Though the surveys were anonymous, the information provided may be sufficient to identify these individuals and connect them to the highly personal details they disclosed. Based on the Town’s response, where the responsive records concern the conduct of a law enforcement official, I find the Town has not shown how the withheld records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Town has not met its burden to withhold the records pursuant to Exemption (c). 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. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any

Mark Purple SPR23/0401 Page 4 March 14, 2023 victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In discussing where redaction of public records may be appropriate to preserve the anonymity of voluntary police officer witnesses, the Court in Antell found the following as reasons for non-disclosure: (1) the complaints made alleging on-the-job misconduct of a police chief triggered the internal affairs investigation; (2) the police officers may continue to be supervised by the police chief; and (3) disclosure may expose the police officers to animus or criticism by their supervisors or colleagues, which could then lead to further discord within the department. Antell, 52 Mass. App. Ct. at 245- 46, 248. Under Exemption (f), the Town argues the following: Here, the surveys contain the following information related to the investigation into certain conduct by [the] Chief [of Police]: information that, in their aggregate and through comparison, could identify voluntary witnesses; information that could disclose the substance of said witnesses’ statements; and information that could disclose the confidential investigative techniques, procedures, or sources of information related to the investigation. Based on the Town’s response, it is unclear how surveys filled out by the Police Department staff were voluntary, meriting the protection afforded to voluntary witnesses under Exemption (f). Consequently, given the finding in Antell, it is unclear how all the Police Department staff, including police officers, were voluntarily witnesses. See also, Reinstein, 378 Mass. at 292 (discussing the voluntary status of police officer and citizen witnesses, concluded that a police officer would be obliged to make an incident report or respond to questions in the course of a firearm investigation, on the pain of otherwise losing his job); Globe Newspaper Co., 419 Mass. at 864 (holding that there was no sufficient basis under the privacy exemption to withhold the identities of police officers interviewed by Internal Affairs Division investigators). 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.

Mark Purple SPR23/0401 Page 5 March 14, 2023 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 Town argues the following: First, these surveys are confidential communications. Confidential communications are those made in confidence, that is, secrecy, between an attorney and their client.... Here, the surveys are communications from Department staff to ... Town Counsel in order to assess legal liability of the Town. The surveys requested information relating to certain conduct of [the] Chief [of Police] toward his employees and were conditioned on anonymity (secrecy) for the purpose of understanding the factual backdrop to evaluate legal options. These surveys are therefore communications made in confidence. Second, those confidential communications must made by and in the course of an attorney-client relationship.... [Town Counsel] represent[s] the Town as Town and Labor Counsel, which includes the Department. [She] also commissioned these surveys in [her] representative capacity as part of the investigation. The communications were therefore made in the course of the attorney-client relationship between the Department and [her]self. These surveys were not provided to other Town staff, including management employees. Third, the Department, as part of the Town, undertook these communications for legal advice....[Town Counsel] advised the Select Board (“the Board”) on the legal issues surrounding certain conduct of [the] Chief [of Police] toward his employees, the investigation into said conduct, and the resulting settlement agreement between [the] Chief [of Police] and the Town.... The surveys all provided facts that supported [Town Counsel’s] legal advice to the Town. Fourth ... [t]he Town has not waived its attorney-client privilege here. Although the Town has provided some information on the subject of the records and the grounds upon which it claims privilege, the Town has not provided the complete index required to claim the attorney-client privilege under the Public Records Law. 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). Further, it is unclear how an attorney-client relationship exists between Town Counsel and individual members of the Police Department staff. Based on the Town’s response, Town

Mark Purple SPR23/0401 Page 6 March 14, 2023 Counsel was providing legal advice to the Select Board regarding the liability of the Town concerning the conduct of the Police Chief toward employees. Accordingly, it is unclear how an attorney-client relationship could also exist between Town Counsel and the individual Police Department employees who filled out the surveys. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Grillo 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: Thomas Grillo Katherine McNamara Feodoroff, Esq.