Ryan Bagwell v. Melrose, City of (SPR 20230706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2023 SPR23/0706 Amy Lindquist, Esq. Assistant City Solicitor for School and Labor City of Melrose 360 Lynn Fells Parkway Melrose, MA 02176 Dear Attorney Lindquist: I have received the petition of Ryan Bagwell appealing the response of the City of Melrose (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2023, Mr. Bagwell requested the following records: [1] all executive session minutes of school committee meetings held between August 1, 2022 and today; [2] all offers made to the Melrose Education Association (MEA) as part of the collective bargaining process for Unit A personnel between August 1, 2022 and today, and; [3] all counter-offers sent to the school committee from the MEA for Unit A personnel between August 1, 2022 and today as part of the collective bargaining process. Prior Appeal This request was the subject of a previous appeal. See SPR23/0417 Determination of the Supervisor of Records (March 16, 2023). The City responded on March 31, 2023. Unsatisfied with the response, Mr. Bagwell petitioned this office and this appeal, SPR23/0706, 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

Amy Lindquist, Esq. SPR23/0706 Page 2 May 1, 2023 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 March 31st Response In its March 31, 2023 response, the City identified responsive documents and cited Exemptions (a), (b) and (g) of the Public Records Law, as well as attorney-client privilege, to withhold the responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the City cited G. L. c. 150E to withhold the requested records and stated as follows: Exemption (a) applies to records that are: specifically or by necessary implication exempted from disclosure by statute. M.G.L. c. 150E requires that the Melrose School Committee bargain in good faith with the Melrose Education Association. As part of the good faith negotiation process the School Committee and

Amy Lindquist, Esq. SPR23/0706 Page 3 May 1, 2023 MEA entered into a ground Rules Agreement. As part of this agreement, documents shared and generated shall be held confidentially by members of the negotiation teams, unless otherwise agreed to. If the School Committee provided these documents the School Committee would be violating the Ground Rules Agreement an opening the School Committee up to legal action. MGL 150E by necessary implication requires the School Committee to keep the above records exempt from disclosure. Based on the City’s response, I find it has not met its burden to withhold the responsive records responsive from disclosure. The City must clarify how G. L. c. 150E provides the basis to exempt the records from disclosure pursuant to Exemption (a) of the Public Records Law. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep't of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of lnformation Act). In its response, the City advised, “[t]he requested records represent the proposals and counterproposals between the parties, and each of these documents responsive to these requests relate to internal personnel practices of the parties. The iterations of the language proposals that were sent back and forth between the parties contain the specific positions of the School Committee on the internal practices of the school department. For example, many of the proposals were in regards to things like class size, teaching hours, work load, and grievance procedures relating to the labor relationship between the parties. Releasing this back and forth exchange of proposals and information, which were done with the understanding said documentation would remain confidential unless otherwise agreed to, would be detrimental to the labor relationship of these two parties and any future negotiations with other employees and Unions within the City.” The City states that it withheld the responsive records because, “. . . [the] documents responsive to these requests relate to internal personnel practices of the parties.” However, the City did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the City’s necessary government function. The City also did not

Amy Lindquist, Esq. SPR23/0706 Page 4 May 1, 2023 provide supporting information as to how the disclosure would be “detrimental to the labor relationship of these two parties and any future negotiations with other employees and Unions within the City.” The City must clarify this matter. Exemption (g) Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit. G. L. c. 4, § 7(26)(g). To properly claim Exemption (g), a custodian must meet all six criteria contained in the exemption: (1) trade secrets or commercial or financial information; (2) voluntarily provided to a government entity; (3) for use in developing government policy; (4) upon an assurance of confidentiality; (5) information not submitted by law; and (6) information not submitted as a condition of receiving a governmental benefit. Consequently, this exemption does not apply to information that companies provide to the government in connection with a contract bid or in compliance with a filing requirement. In its response, the City opined, (1) Trade secrets or commercial or financial information: The documents requested contain financial proposals from the Melrose Education Association (MEA) and the Melrose School Committee. Specifically, the documents contain financial offers and detailed financial information specific to more than 400 individual employees that if made public could be detrimental to negotiations in the future with other bargaining units. The City of Melrose and the Melrose Public Schools negotiate with more than ten (10) bargaining units that represent over 600 employees. This information also contains the bargaining strategy of the School Committee and City, and could be used by other bargaining units in future negotiations. (2) Voluntarily provided to a government entity: The School Committee and MEA provided these documents voluntarily to the other party in order to explain its bargaining position to try to reach an agreement. All information exchanged was pursuant to the ground rules with the understanding that it would be kept confidential. The free exchange of such information between the parties is made possible for the purposes of collective bargaining, with the presumption that every such exchange and potential proposal or inclusion of such detailed person specific financial information will not be subject to public disclosure.

Amy Lindquist, Esq. SPR23/0706 Page 5 May 1, 2023 (3) For use in developing government policy: Based on information contained in the negotiation documents the Melrose Public Schools will base policy decisions such as funding of different school programs, use of resources, and staffing needs. (4) Upon an assurance of confidentiality; The parties provided the requested documents and information to one another during The bargaining process with the understanding that these proposals would be kept confidential pursuant to the Ground Rules Agreement. Specifically ¶ 5 of said Agreement signed by both parties requires as follows: ‘Documents shared and generated shall be held confidential by the member of the negotiation teams, unless otherwise agreed to.’ As there has been no agreement by the parties to release said documentation or information as of today’s date the assurance of confidentiality under which this documentation was shared still remains in full effect. (5) Information not submitted by law: As was stated in the District’s original response to your request, M.G.L. c. 150E Requires the parties to bargain in good faith, however there is no legal requirement for the parties to submit their bargaining positions in writing. Therefore the request documents do not contain information that was submitted by law. (6) Information not submitted as a condition of receiving a governmental benefit: There is not a requirement or a condition that either party submit the information contained in the responsive records in order to receive a governmental benefit. Upon review of the file and the appeal, it is unclear how the documents constitute trade secrets or commercial or financial information as required in element number 1. Further, it is unclear whether satisfaction of element number 6 of Exemption (g) exists: whether information not submitted as a condition of receiving a governmental benefit. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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

Amy Lindquist, Esq. SPR23/0706 Page 6 May 1, 2023 made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; -se-e -al-so- -H-an-o-v-e-r I-n-s.- C-o-. -v-. R--ap-o- &-- J-ep-s-en- -In-s-. S-e-rv-s-., 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. The indices shall include 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, § l0A(a). In its response, the City referenced Request 1 and stated, attached “... documents which have been redacted to preserve the Attorney Client Privilege. In Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007), the Supreme Judicial Court (SJC) held that confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. The Attorney Client Privilege is asserted as legal counsel for the School Committee, I appeared before the Committee during executive session (which is not open to the public) to provide legal advice ...” Upon review, the City has not satisfied the requirements articulated in Suffolk. Additionally, I find the City is to provide a privilege log in compliance with G. L. c. 66, § 10A(a). As a result, I find that the City did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is to provide Mr. Bagwell with a response to the request, provided in a manner consistent with the Public Records Law and its Regulations within 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: Ryan Bagwell