Michael Shannon v. Wellfleet, Town of - Town Clerk (SPR 20240955)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2024 SPR24/0955 Jennifer M. Congel Town Clerk Public Records Access Officer Town of Wellfleet 300 Main Street Wellfleet, MA 02667 Dear Ms. Congel: I have received the petition of Michael Shannon appealing the response of the Town of Wellfleet (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 18, 2023, Mr. Shannon requested “email communications between [three named Select board members], during the period June 12, 2023 and July 17, 2023.” Prior Appeal This request was the subject of a prior appeal. See SPR24/0411 Determination of the Supervisor of Records (February 23, 2024). In my February 23rd determination, I found that the Town did not meet its burden to withhold records under Exemption (c). The Town responded on March 8, 2024. Unsatisfied with the Town’s response, Mr. Shannon petitioned this office and this appeal, SPR24/0955, 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 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

Jennifer M. Congel SPR24/0955 Page 2 April 11, 2024 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 Town’s Responses In its March 8, 2024 response, the Town cited Exemption (c) of the Public Records Law and the Open Meeting Law to withhold additional records. In its previous response on January 26, 2024, the Town additionally cited the attorney-client privilege and provided a privilege log. 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. 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

Jennifer M. Congel SPR24/0955 Page 3 April 11, 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 Town stated the following: The Town has diligently and carefully considered this request, while balancing the privacy interests of a former Town employee’s confidential personnel information, the disclosure of which, without authorization, clearly implicates the individual’s privacy interests. Specifically, after further diligent review, the Town submits that the personnel information requested pertains to a former employee, and invokes the reputational interests of a former Town employee and their personnel information. This information being withheld has not been publicly disclosed and is not otherwise available. The Town has not received any authorization from the former employee to release this information, which is exempt from disclosure pursuant to Exemption (c)… In this instance, the Town has carefully evaluated this determination in good faith in light of the Public Records Law and its government transparency principles while balancing the privacy rights of Town employees in the Town’s role as an employer. The Town submits that the remaining records requested are exempt, confidential personnel information regarding the former Town Administrator, the disclosure of which may implicate such privacy interests and the information has not otherwise been publicly disclosed. Indeed, as you are aware, the former Town Administrator has resigned from his position and is no longer an employee of the Town of Wellfleet. To that end, the resignation has been acknowledged by the Selectboard and discussed publicly to the extent allowable by law. In his appeal, Mr. Shannon states, “[t]he Town continues to make the broad, blanket, and unsupported assertion that Exemption (c) applies to the records being withheld… The Town’s response did not contain the specificity required in a denial of access to public records. Based on the Town’s response, it is unclear how the withheld records, in their entirety, contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the Town did not provide additional 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. Further, the Town must clarify how the requested communications constitute one of the core categories of personnel information useful in making employment decisions regarding an employee.

Jennifer M. Congel SPR24/0955 Page 4 April 11, 2024 In addition, the Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c). The Town must clarify these matters. As a result, I find that the Town did not meet its burden of specificity in withholding the records under Exemption (c) of the Public Records Law. 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). 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). In its previous response on January 26, 2024, the Town cited the attorney-client privilege and provided a privilege log. When citing the attorney-client privilege the Towns stated the following: The Town is withholding records … which are not subject to disclosure under the Public Records Law, as they constitute privileged communications between Town officials and Town Counsel. Where the Town or its employees and officials receive information from legal counsel, in confidence, such discussions and any documents reflecting advice from its counsel would be protected from disclosure under the attorney-client privilege. Please be advised that certain records, as specified below, constitute privileged information between Town officials and its attorneys for the purpose of obtaining legal advice, for which the attorney-client privilege has not been waived, and therefore, such record may be withheld pursuant to the attorney-client privilege. In his current appeal, Mr. Shannon states, “[t]he Town has not met its burden of proof that emails it claims are exempt from disclosure for attorney-client privileged are exempt. While

Jennifer M. Congel SPR24/0955 Page 5 April 11, 2024 the Town provided an attorney-client privilege log, the log lacks the required specificity and fails to explain how the attorney-client privilege applies.” I find that the Town has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Town must clarify that the communications were made in confidence. Additionally, the Town is advised that G. L. c. 66, § 10A(a) requires that a records custodian provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Although the Town provided the names of the individuals, it is uncertain who the author and recipients are in the privilege log as provided. As such, the Town must provide the names of the author and recipients of the communications in accordance with G. L. c. 66, § 10A(a). Open Meeting Law In the response, the Town states, “[i]n addition, several records containing personnel information also pertain to confidential executive session matters pursuant to G.L. c. 30A, s. 21, the Open Meeting Law, as that statute operates through Exemption (a). Therefore, the remaining records sought cannot be provided.” In his current appeal, Mr. Shannon states, “[i]t is interesting that the Town refers to ‘several records containing personnel information also pertain to confidential executive session matters pursuant to G.L. c. 30A, § 21, the Open Meeting Law, as that statute operates through Exemption (a).’… Those records are the subject of an active Open Meeting Law complaint review assigned to Assistant Attorney General…” The Town’s response raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). The Town is advised that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. Conclusion Accordingly, the Town is ordered to provide Mr. Shannon 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.

Jennifer M. Congel SPR24/0955 Page 6 April 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Michael Shannon