Elizabeth Eldridge v. Somerville, City of - Public Schools (SPR 20232728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2023 SPR23/2728 Dr. Rubén Carmona Superintendent of Schools Somerville Public Schools 8 Bonair Street Somerville, MA 02145 Dear Dr. Carmona: I have received the petition of Elizabeth Eldridge appealing the response of the Somerville Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 5, 2023, Ms. Eldridge requested “[a]ny and all correspondence, details, documentation and investigation into [an identified incident] on May 4, 2023.” Previous appeal This request was the subject of a previous appeal. See SPR23/2645 Determination of the Supervisor of Records (November 10th, 2023). In the November 10th determination, I closed the appeal as a result of the School’s October 4, 2023 response. Unsatisfied with the response, Ms. Eldridge petitioned this office and this appeal, SPR23/2728, 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 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

Dr. Rubén Carmona SPR23/2728 Page 2 November 22, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In her appeal, Ms. Eldridge states that “[t]he records provided to [her] are incomplete[,]” and that she has “not received the ‘School Department’s investigation’ as detailed in the letter attached to [the School’s] previous email.” Additionally, Ms. Eldridge states that “[i]t is clear from the review of documents in [the School’s] previous email … that many emails that both [Ms. Elridge’s husband and herself] sent to the school regarding this incident were not included, therefore again suggesting [she] have not received a complete copy of records.” The School’s October 4th response In its October 4, 2023 response, the School provided Ms. Eldridge with records responsive to her request. The School also withheld and redacted additional responsive records under Exemptions (c) and (e) of the Public Records Law, as well as under attorney-client Privilege. G. L. c. 4, § 7(26)(c), (e). The School provided a further response dated November 8, 2023. In this response, the School states that “[t]he requester has already received all non-exempt records and an explanation for any exempt information/documents that were redacted/withheld.” Based on the School’s responses and Ms. Eldridge’s appeal, it is unclear if the School possesses additional records responsive to the request. Specifically, the School must clarify if it possesses a record that reflects “the School Department’s investigation,” as referenced in Ms. Eldridge’s appeal. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the School must clarify whether additional records exist. 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from

Dr. Rubén Carmona SPR23/2728 Page 3 November 22, 2023 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). 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). 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. Citing Exemption (c), the School states the following: Pursuant to Exemption (c), the City has withheld the personnel file and redacted the identity of the West Somerville Neighborhood School janitor referred to in your request… Here, the allegations against the janitor involved have been fully investigated and it has been determined that there is not enough evidence to conclude the employee engaged in wrongdoing. Accordingly, the City has determined the employee’s privacy interest here outweighs the public interest in disclosure of this information. Based on the School’s response, it is unclear how the requested records constitute one of the “core categories of personnel information that are ‘useful in making employment decisions

Dr. Rubén Carmona SPR23/2728 Page 4 November 22, 2023 regarding an employee.’” Further, the School has not demonstrated that the records contain intimate details of a highly personal nature or that disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information contained in the records is available from other sources. PETA, 477 Mass. at 292. The School must clarify these issues. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Citing Exemption (e), the School states the following: Pursuant to Exemption (e), the personal notes of employees that investigated this matter have been withheld… The School and City personnel employees that investigated the matter referred to in your request created certain notes in the course of their investigation, however, those notes were personal in nature and utilized in drafting reports and letters subsequently produced concerning this matter. These notes were not shared with others and not maintained in the School or City’s files, and are, therefore, subject to withholding under Exemption (e).

Dr. Rubén Carmona SPR23/2728 Page 5 November 22, 2023 Where the School states that the personal notes were utilized in drafting reports and letters subsequently produced, were not shared with others, and are not maintained in the School or City’s files, I find the School has met its burden in withholding the notes pursuant to Exemption (e). 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, 450 n.9 (2007); 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 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). Claiming attorney-client Privilege, the School states the following: [T]he City has withheld communications between its Human Resources staff and legal counsel pursuant to the Attorney-Client Privilege. Such communications remain privileged notwithstanding the involvement of public officials, as noted above. The City has, therefore, withheld communications to and from its attorney(s) related to this matter. Based upon the School’s response, I find the School has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. The School has not explained whether the communications were received during the course of the client’s search for legal advice from the attorney in his or her capacity as such. Further, the School has not stated whether the communications were made in confidence or whether the privilege has been waived. Additionally, the School has not provided a privilege log with 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 pursuant to G. L. c. 66, § 10A(a).

Dr. Rubén Carmona SPR23/2728 Page 6 November 22, 2023 Conclusion Accordingly, the School is ordered to provide Ms. Eldridge with a response 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. Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Eldridge