Margaret Sheehan v. Plymouth, Town of (SPR 20231239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2023 SPR23/1239 Connor Anderson Archivist/Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Margaret E. Sheehan, Esq., of Community Land and Water Coalition (CLWC), appealing the response of the Town of Plymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On Sunday, April 28, 2023, Attorney Sheehan requested the following records: [1] Executive Session Minutes of the Selectboard meetings of April 18, 2023 and April 25, 2023 with regard to the Agenda Item, 158 Center Hill Road lease... [2] All drafts and final versions of the April 24, 2023 letter; [3] All communications, including emails, among and between Town employees, the Selectboard and members of the public relating or referring to the Letter; [4] All communications between Selectboard member Cavacco and any Town employee relating or referring to [named person]; [5] All legal bills relating to or referring to the Letter and the lease of 158 Center Hill Road for the period from January 1, 2023 to present; and, [6] All time sheets or records relating or referring to time spent by Town employees discussing the Letter or drafting or researching the Letter. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1026 Determination of the Supervisor of Records (May 30, 2023). The Town responded on June 1, 2023. Unsatisfied with the response, Attorney Sheehan petitioned this office and this appeal, SPR23/1239, 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

Connor Anderson SPR23/1239 Page 2 June 26, 2023 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 June 1st Response In the Town’s June 1, 2023 response, the Town claimed Exemption (c) of the Public Records Law to redact certain records, and further claimed attorney-client privilege to withhold requested records. The Town also stated that no records exist for requests numbered 1, 3 and 6. 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

Connor Anderson SPR23/1239 Page 3 June 26, 2023 ‘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 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 Town stated, “[t]he Town has redacted personal e-mail addresses and personal phone numbers because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public’s interest in disclosure of the material. These redactions have been made to the record only where necessary and no whole pages have been redacted.” Based on the Town’s explanation, I find that the Town may permissibly withhold personal e-mail addresses and personal phone numbers, 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 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party

Connor Anderson SPR23/1239 Page 4 June 26, 2023 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 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 Town stated, “… all legal bills relating or referring to the Letter and the lease of 158 Center Hill Road for the period from January 1, 2023 to present are being withheld. The withheld records are privileged communications for the purpose of obtaining legal advice or assistance between the Town and our legal counsel, which is protected under the attorney-client privilege. Suffolk Construction. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). The Town of Plymouth does not waive the attorney-client privilege relative to this request for the reason stated above. A privilege log of the withheld records is included with this response.” The Town provided Attorney Sheehan with a privilege log for one (1) legal bill/invoice. The Town provided: “the from, the to, Subject (Statement of Account Invoice #8, the date, and a Note: Privileged attorney work product concerning billing for legal services.” In her June 7th appeal petition, Attorney Sheehan asserts, “[t]he record is an invoice for legal services provided by Reservitz-Bergeron Associates to the Town. The Town claims the invoice is exempt from disclosure under the [P]ublic [R]ecords [L]aw citing Suffolk Construction Co. v. Div. of Capital Asset Management, 449 Mass. 444 (2007) and attorney client privilege. CLWC challenges the Town’s withholding of the invoice…” Further, Attorney Sheehan asserts, “…to withhold a public record on grounds of attorney client privilege under the Suffolk case the record must be a confidential communication undertaken for the purpose of obtaining advice … Here, then [identified Select Board Chair] consulted the Town attorney for personal political purposes – not for the purpose of obtaining legal advice for the Town.” Based on the above, the Town must explain how the withheld legal invoice, in its entirety, constitutes an attorney-client privileged communication as claimed. It is unclear why the Town cannot redact privileged information from the legal bill/invoice. Further, the Town must clarify that the legal bill/invoice represents a communication 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. See Suffolk, 449 Mass. at 460.

Connor Anderson SPR23/1239 Page 5 June 26, 2023 Conclusion Accordingly, the Town is ordered to provide Attorney Sheehan with a response to her request 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 the response to this office at pre@sec.state.ma.us. Attorney Sheehan may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Margaret E. Sheehan, Esq.