Ivria Fried v. Everett, City of - Public Schools (SPR 20240388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2024 SPR24/0388 David O’Connor Records Access Officer Everett Public Schools 121 Vine Street Everett, MA 02149 Dear Ms. O’Connor: I have received the petition of Attorney Ivria Glass Fried appealing the response of the Everett 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 January 2, 2023, Attorney Fried requested the following: 1. Copy of [an individual’s] Interim Superintendent Contract. Please provide any draft copies shared with [his] or his legal counsel, as well as the final executed version. 2. The agenda and minutes of the School Committee meeting at which the School Committee voted to approve the Interim Superintendent Contract.... Please provide draft minutes, if final minutes are not available. 3. Copy of [the individual’s] Superintendent Contract. Please provide any draft copies shared with [his] or his counsel, as well as the final executed version. 4. For the period of July 1, 2023 to December 30, 2023, all communications between any or all of [a list of named] individuals ... excluding any email that includes School Committee Legal Counsel ... or any attorney from the City Solicitor’s office. 5. For the period of July 1, 2023 to December 30, 2023, all communications between the Superintendent Search Committee’s consultant ... or its representatives, and any of [a list of named individuals] ... excluding any email that includes School Committee Legal Counsel ... or any attorney from the City Solicitor’s office. 6. For the period of May 1, 2023 to December 30, 2023, all communications between [an individual] acting as legal counsel to the School Committee, and [another] or his legal representative, that discuss the hiring of ... the Interim School Superintendent or the School Superintendent. 7. For the period of April 1, 2023 to December 30, 2023, all communications 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

David O’Connor SPR24/0388 Page 2 February 21, 2024 between [an individual] or his legal counsel and any of [a list of] individuals.... For this request, please only produce communications sent from [his] personal email address. Emails sent from his school provided email address do not need to be produced. 8. Copies of the Superintendent Search Committee’s Executive Session and Open Session meeting minutes for any meeting held between September 1, 2023 and December 27, 2023. Please provide draft minutes, if final minutes are not available. 9. Copies of the School Committee’s November 20, 2023 Executive Session meeting minutes in draft or final form. 10. Copies of the School Committee’s December 20, 2023 Executive and Open Session meeting minutes in draft or final form. 11. Copies of any Assistant Superintendent or Deputy Superintendent contract executed on or after September 1, 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); 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 School’s January 23rd Response In its January 23, 2024 response, the School cites Exemptions (b), (c), (d), (e) and (g), along with the attorney-client privilege, for withholding responsive records. See G. L. c. 4, § 7(26)(b), (c), (d), (e), (g). Exemption (b) Exemption (b) permits the withholding of records that are:

David O’Connor SPR24/0388 Page 3 February 21, 2024 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 governmental 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 Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------ (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Although the School cites Exemption (b) in its January 23rd response, it is unclear how any of the withheld records relate solely to internal personnel rules or practices, how performance of governmental functions requires withholding, or how disclosure with cause the School’s rules or regulations to be circumvented. The School must clarify these matters. 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). 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.

David O’Connor SPR24/0388 Page 4 February 21, 2024 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). 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. In its January 23rd response, under Exemption (c), the School states it is withholding “private personnel records relating to contract drafts and negotiations,” and “private personnel records of non-finalists.” Based on the School’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the School did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The School must clarify these matters Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably

David O’Connor SPR24/0388 Page 5 February 21, 2024 completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters ----------------------- used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Based on the School’s response, the School has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Additionally, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa at 448. Further, the School has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa at 448. The School must clarify these matters. 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).

David O’Connor SPR24/0388 Page 6 February 21, 2024 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. Under Exemption (e), the School notes that it is withholding “records that are work related personal to an employee and not maintained as a part of the files of the Everett School Department.” Based on the School’s response, it is unclear whether the records withheld under Exemption (e) were shared by the employee with others. The School must clarify this. Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply in order to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and

David O’Connor SPR24/0388 Page 7 February 21, 2024 (6) Information not submitted as a condition of receiving a governmental contract or benefit. Under Exemption (g), the School argues that “any documents that contain any proprietary records of Alma, the committee’s search consultant, ... involve trade secret information under ... Gen. L. c. 4 sec. 7(26)(g) (trade secret information exemption),” and that “ any trade secret information belonging to Alma cannot be produced and are exempt from production.” Based on the School’s response, it is unclear how any of the responsive records would meet all six of the criteria contained in Exemption (g). The School must clarify this. Burden of Specificity; Identify the Records Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Although the School provided a list of some records it intends to withhold, it is unclear from the School’s response which specific records the School intends to withhold under each exemption cited in its response. The School must identify the records, categories of records, or portions of records it intends to withhold under the exemptions cited above, and explain with specificity how each exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. ------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). 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

David O’Connor SPR24/0388 Page 8 February 21, 2024 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 January 23rd response, the School provides a privilege log listing 13 documents. Although the School provides some information regarding these documents, I find that in accordance with G. L. c. 66, § 10A(a), for each document listed, the School must provide “a detailed description of the record[s], 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.” Further, the School must clarify whether the communications were made in confidence and that the privilege as to the communications has not been waived. Records in Existence; Possession, Custody, or Control The School is advised that 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). In its January 23rd response, the School states that one individual “is continuing to search private email addresses for responsive emails.” Additionally, in her appeal petition, Attorney Fried contends that the minutes she was provided in response to Part 2 of the request “do not include a vote to approve the Interim Contract, as requested.” Based on the School’s January 23rd response, and information provided in Attorney Fried’s appeal petition, it is unclear whether the School possesses additional records responsive to this request. The School must clarify this. Conclusion Accordingly, the School is ordered to provide Attorney Fried 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: Ivria Glass Fried, Esq. Robert W. Galvin, Esq.