Ryan Bagwell v. Melrose, City of (SPR 20231089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 7, 2023 SPR23/1089 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 Appeals This request was the subject of previous appeals. See SPR23/0417 Determination of the Supervisor of Records (March 16, 2023) and SPR23/0706 Determination of the Supervisor of Records (May 1, 2023). The City responded on May 17, 2023. Unsatisfied with the response, Mr. Bagwell petitioned this office and this appeal, SPR23/1089, 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 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. SPR23/1089 Page 2 June 7, 2023 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 March 31st Response In its March 31, 2023 response, the City identified responsive documents and cited Exemptions (a) and (b) 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:

Amy Lindquist, Esq. SPR23/1089 Page 3 June 7, 2023 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 MEA entered into a ground Rules Agreement (provided in supplemental response dated March 31, 2023). 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 and 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. M.G.L. c. 150E specifically section 6 allows for violations of the law to be brought relative to contract repudiation when an unambiguous term in a collectively bargaining for agreement is not abided by its terms. Town of Falmouth, 20 MLC 1555 (1994), aff'd sub nom. Town of Falmouth v. Labor Relations Commission, 42 Mass. App. Ct. 1113 (1997); Commonwealth of Massachusetts, 36 MLC 65 (2009). This section of the law, by necessary implication, necessitates the withholding of this documentation since the non-public nature of this documentation and that it would remain private and confidential between the parties was an unambiguous provision of the “ground rules” agreement between the parties. Producing this documentation could likely trigger a legal claim brought by the Union against the City for a violation of 150E for violating the explicit terms of the ground rules. This will violate the trust. 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 Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of lnformation Act).

Amy Lindquist, Esq. SPR23/1089 Page 4 June 7, 2023 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.” 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 made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; 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. 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). 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 referenced Request number 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

Amy Lindquist, Esq. SPR23/1089 Page 5 June 7, 2023 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, specifically, whether the communications were made in confidence; and that the privilege as to these communications has not been waived. Further, I find the City must provide a privilege log in accordance with G. L. c. 66, § 10A(a). Specifically, the City must provide the names of recipients. In camera inspection In order to facilitate a determination as to the applicability of the City’s claims to withhold a portion of the records pursuant to Exemptions (a) and (b) of the Public Records Law, the City must provide this office with an un-redacted copy of the responsive records for in camera inspection for records responsive to Requests 2 and 3 only. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Amy Lindquist, Esq. SPR23/1089 Page 6 June 7, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Ryan Bagwell