Elizabeth Eldridge v. Somerville, City of - Law Department (SPR 20233002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 26, 2023 SPR23/3002 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 appeals This request was the subject of previous appeals. See SPR23/2645 Determination of the Supervisor of Records (November 10, 2023) and SPR23/2728 Determination of the Supervisor of Records (November 22, 2023). In the November 22nd determination, I ordered the School to clarify whether additional records exist, and its claims under Exemption (c) of the Public Records Law and the attorney-client privilege. The School provided a response on December 6, 2023. Unsatisfied with the response, Ms. Eldridge petitioned this office and this appeal, SPR23/3002, 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 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 SPR23/3002 Page 2 December 26, 2023 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. Current appeal In her appeal, Ms. Eldridge states that “the records provided to [her] continue to be incomplete and are missing, at minimum, the investigation report from Somerville Public Schools as noted in [a named individual]’s reply on 11/8/23[.]” The School’s December 6th response In its December 6, 2023 response, the School provides additional information in support of its claims under Exemption (c) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(c). The School also states that Ms. Eldridge has “already received all non-exempt records in the City’s/school department’s possession and an explanation for any exempt information/ documents that were redacted/withheld” and confirms that “[t]he City and its school department have not located any additional records responsive to [Ms. Eldridge’s] request.” Based on Ms. Eldridge’s appeal, it is unclear if the School possesses any additional records responsive to the request. Specifically, the School must clarify if it possesses “. . . the investigation report from Somerville Public Schools as noted in [a named individual]’s reply on 11/8/23[.]” 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). The School must clarify this matter. 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 disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App.

Dr. Rubén Carmona SPR23/3002 Page 3 December 26, 2023 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: To further clarify the exemptions cited in the City’s October 4 response, please be advised that the personnel file of the West Somerville School custodian has been withheld pursuant to Exemption (c). This custodian is an employee of the City, and exemption (c) applies to records such as applications, disciplinary documentation, evaluations, and position or title change documentation, all of which are core categories of personnel information used to make employment decisions and absolutely exempt. Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798-799 (2000). The employee’s personnel file also contains personal and medical information, such as the employee’s address, date of birth, and social security number[.]

Dr. Rubén Carmona SPR23/3002 Page 4 December 26, 2023 Finally, the City has redacted the name of the West Somerville School custodian in certain records provided pursuant to Exemption (c) because that information constitutes intimate details of a highly personal nature, and its disclosure could result in embarrassment to an individual of normal sensibilities… Here, the employee involved was accused of workplace misconduct and the allegations against him were not sustained following investigation. In this circumstance, disclosure of the employee’s identity would cause embarrassment to a person of normal sensibilities and reputation harm that outweighs the public’s interest in the identity of an employee accused of wrongdoing without an actual finding of wrongdoing… We are not aware of this information being available from other public sources. Based on the School’s response, to the extent that the records contain medical information and social security numbers, the School may permissibly withhold such portions from disclosure. However, the School has not demonstrated that the additional information in the employee’s personnel file, specifically the employee’s address, date of birth, name, and application, constitute intimate details of a highly personal nature or that the disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. Also, the Shool did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining this information outweighs the seriousness of any invasion of privacy. The School must identify the types of records contained in the personnel file. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The School 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, 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).

Dr. Rubén Carmona SPR23/3002 Page 5 December 26, 2023 Claiming the attorney-client privilege, the School states that it is “enclosing a Privilege Log detailing all attorney-client communications withheld because they were exchanged in confidence amongst the City’s Human Resources staff and legal counsel in the course of providing legal advice.” In its prior response dated October 4, 2023, the School states that “[s]uch communications remain privileged notwithstanding the involvement of public officials.” See SPR23/2728 Determination of the Supervisor of Records (November 22, 2023). Based upon the School’s response, I find the School must provide a sufficient privilege log which includes the substance of the record and the grounds upon which the attorney-client privilege is being claimed. 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