Jake Hentoff v. Boston, City of - Public Records (SPR 20240692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2024 SPR24/0692 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Jake Hentoff, Esq., of the Boston Globe Media Partners, LLC, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 22 2023, Danny McDonald, of the Boston Globe, requested the following records: [1.] Any city correspondence to or from [an identified individual] or any other attorney representing former [identified] city employee regarding his severance agreement with the city. [2.] Any documents that define the severance agreement of former [identified] city employee. The City responded on February 9, 2024. Unsatisfied with the City’s response, Attorney Hentoff petitioned this office and this appeal, SPR24/0692, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Shawn A. Williams, Esq. SPR24/0692 Page 2 March 20, 2024 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 City’s February 9th response In its February 9, 2024 response, the City claimed Exemption (c) of the Public Records Law to redact and withhold the requested records. Further, the City cited attorney-client privilege to withhold other requested records in their entirety. 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 ‘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

Shawn A. Williams, Esq. SPR24/0692 Page 3 March 20, 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). 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 City stated, ... the “severance agreement” is redacted to omit personnel and other private information permitted under exemption (c) of the public records law and applicable case law. The public interest in disclosure does not outweigh the privacy interest, and the information is unavailable from another source. G. L. c. 4., § 7 (26) (c); see also Globe Newspaper Company v. Executive Office of Administration and Finance, 2011-01184 A (June 14, 2013). One additional record, a letter from a representative ... is withheld. This letter consists solely of exempt personnel information pursuant to the privacy exemption. The letter contains information useful in making employment decisions regarding a specifically identified person. The public interest in disclosure does not outweigh the privacy interest held by the person identified in your request. Further, the information is not available from other public source. Finally, the record is incapable of redaction without rendering the result useless. G. L. c. 4., § 7 (26) (c). ... email address is redacted from the responsive email records pursuant to the privacy exemption. Based on the City’s response, the City may redact [an identified individual’s] email address as long as it is a private email address. Upon review, it is uncertain how the redacted records contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Further, the City did not provide sufficient information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id.

Shawn A. Williams, Esq. SPR24/0692 Page 4 March 20, 2024 Additionally, it is uncertain how the responsive letter constitutes one of the core categories of personnel information that is useful in making an employment decision regarding an employee. Also, it is not clear why segregable portions of the responsive letter cannot be provided. See 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). Any non-exempt, 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 (2017); 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). 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 City stated, Some of the records you seek consist of attorney-client privileged communications. Suffolk Const. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). These records shall be withheld entirely ... The Suffolk Court’s holding imposes a burden on a records custodian of “not only proving the existence of an attorney-client relationship but also (1) that the communications were received from a client during the client’s search for legal advice from the attorney in his 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 SPR18/423 (April 11, 2018), p2. The withheld records consist solely of communications between City employees and their attorneys. Such records contain information between an attorney and client related to “the client’s search for legal advice from the attorney in his capacity as such.” All of these communications “were made in confidence.” In all cases, “the privilege as to these communications has not been waived.” The Client is the City of Boston.

Shawn A. Williams, Esq. SPR24/0692 Page 5 March 20, 2024 Upon review, the City has not provided a privilege log with a detailed description of the records, 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). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Attorney Hentoff 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. Attorney Hentoff may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jake Hentoff, Esq.