Andrew Quemere v. Beverly, City of - (SPR 20240236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2024 SPR24/0236 Peter O’Connor Fire Chief Beverly Fire Department 15 Hale Street Beverly, MA 01915 Dear Chief O’Connor: I have received the petition of Andrew Quemere appealing the response of the Beverly Fire Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2023, Mr. Quemere requested the following: All reports, letters, memoranda, photographs, videos, and other records created, received, or maintained by the Beverly Fire Department that relate to the Elliott Chambers rooming house fire, which occurred on July 4, 1984. This request was the subject of previous appeals. See SPR23/1238 Determination of the Supervisor of Records (June 23, 2023); SPR23/1658 Determination of the Supervisor of Records (August 2, 2023); SPR23/1854 Determination of the Supervisor of Records (August 23, 2023); and SPR23/2638 Determination of the Supervisor of Records (November 16, 2023). In my November 16th determination, I ordered the Department to provide a supplemental response to Mr. Quemere. Subsequently, the Department responded on December 5, 2023, citing Exemption (c) of the Public Records Law and the attorney-client privilege for redacting numerous records and for withholding others. Unsatisfied with the Department’s response, Mr. Quemere further appealed, and this case 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

Chief Peter O’Connor SPR24/0236 Page 2 February 8, 2024 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. 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 Department’s December 5th Response In its previous responses, the Department provided 281 pages of responsive records. In its December 5, 2023 response, the Department cites Exemption (c) of the Public Records Law for redacting those records and for withholding twelve pages, and also cites the attorney-client privilege for withholding 107 pages of other records. See G. L. c. 4, § 7(26)(c). Exemption (c) Exemption (c) applies to: 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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

Chief Peter O’Connor SPR24/0236 Page 3 February 8, 2024 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the Department argues the following: Within the 281 pages, the Department redacted the names, dates of birth and information related to the medical history and specific injuries of individuals identified in the responsive records. Specifically, the Department redacted the medical history of residents of the Elliot Chambers rooming house from the November 5, 1985, demand letter sent to the then Mayor of the City of Beverly. The Department withheld twelve (12) pages of responsive records which listed named individuals and the medical facilities at which the individuals received treatment. . . . The redacted and withheld information contains personnel and medical files or information relating to an identifiable individual and is therefore exempt from disclosure pursuant to the first clause of Exemption (c). . . . The specifically named individuals include those living in dwellings to which the Department responded and employees of the Department injured during a response. The disclosure of the redacted and withheld information does not advance any significant interest when weighed against the privacy concerns of the individuals identified in the records and the surviving family members of any now deceased individuals. The redacted and withheld information would result in personal embarrassment to an individual of normal sensibilities” or “contain[s] intimate details of a highly personal nature.” . . . The redacted and withheld information contains intimate details of a highly personal nature; the individual privacy interests outweigh the public interest in disclosure. While the names of individuals injured in, or those who died as a result of, the fire at the Elliott Chambers rooming house fire on July 4, 1984, are publicly available there is no significant public interest advanced by providing further specific information on the injuries suffered, the treatment received, the location of the treatment given, or the prior medical history of those individuals. “Otherwise private information does not necessarily lose that character by having been at one time placed in the public domain.”

Chief Peter O’Connor SPR24/0236 Page 4 February 8, 2024 Where the Department has redacted medical information that is of a personal nature and relates to specifically named individuals, I find the Department has met its burden to redact such information from the responsive records. However, where the Department has indicated that it “withheld twelve (12) pages of responsive records” listing individuals and medical facilities, it is unclear whether those pages can be redacted so that non-exempt portions can be provided. The Department must clarify this. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 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 not inspect the record but 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 December 5th response, the Department states that it “withheld 107 pages of communications protected by the attorney-client privilege.” The Department provides a detailed description of the substance of the records, and the grounds upon which the privilege is being claimed. However, with regard to three communications described in its response, the Department states that “on February 1, 1988, March 7, 1988, March 22, 1988, Attorney William H. Sheehan, III, outside counsel retained by the City, corresponded with the City Clerk, City Health Department, City Building Commissioner, City Fire Department, [and a named individual].” As to these specific communications, the Department must provide the names of the recipients. Additionally, the Department must confirm whether all the communications were made in confidence, and must confirm whether the privilege as to the communications has been waived.

Chief Peter O’Connor SPR24/0236 Page 5 February 8, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, provided 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: Andrew Quemere Beth Oldmixon, Esq.