Colman Herman v. Massachusetts Convention Center Authority (SPR 20240994)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 17, 2024 SPR24/0994 Philip Crohan Communications & External Relations Manager Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Mr. Crohan: I have received the petition of Colman Herman appealing the response of the Massachusetts Convention Center Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 14, 2024, Mr. Herman requested, “…copies of the agreements that the Massachusetts Convention Center Authority has executed with the law firms whose invoices were recently provided to me.” On April 1, 2024, the Authority provided a response. Unsatisfied with the Authority’s response, Mr. Herman petitioned the Supervisor of Records, and this appeal, SPR24/0994 was opened. 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. See 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. 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

Philip Crohan SPR24/0994 Page 2 April 17, 2024 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. Current Appeal In his appeal, Mr. Herman stated, “MCCA’s claim of exemption (c) lacks the specificity required by the public records law. Instead, the agency merely resorts to parroting back what the law says. Moreover, producing the agreements would violate no one’s privacy. Mr. Herman also stated, “[a]lthough MCCA cites Suffolk as a basis for claiming attorney-client privilege, the agency fails to comply with the many requirements laid down by the Suffolk court.” The Authority’s April 1st Response On April 1, 2024, the Authority withheld requested records citing Exemption (c) of the Public Records Law and attorney-client privilege. Subsequently, the Authority provided a response on April 16th restating its claim of attorney-client privilege and stated, “[t]he engagement letters Mr. Herman seeks are privileged; they are confidential communications made in connection with the provision of legal advice to the MCCA…the MCCA has not waived that privilege.” Mr. Herman responded on April 17th and stated, “Ms. Joyce continues to fail to comply with all the requirements of Suffolk.” 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

Philip Crohan SPR24/0994 Page 3 April 17, 2024 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. 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). 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 citing Exemption (c) to withhold the records, the Authority stated, “[t]hese records are exempt from disclosure pursuant to M.G.L. c.4, section 7(26)(c) (‘The Privacy Exemption’). Exemption c permits the withholding of ‘personnel and medical files or information; also, any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’” Based on the Authority’s response, it is unclear how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the Authority did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. 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.

Philip Crohan SPR24/0994 Page 4 April 17, 2024 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 citing attorney-client privilege to withhold the requested records, the Authority stated, “[f]inally, the attorney-client privilege may apply to these records as well. See Suffolk Constr. Co. v. Div. of Capital Asst Mgmt., 449 Mass. 444 (2007).” Based on the Authority’s response, it is unclear how the records in their entirety may be withheld pursuant to attorney-client privilege. The Authority has not provided a privilege log producing detailed indices to support the claim of privilege. See G. L. c. 66, § 10A(a). Furthermore, it is unclear if the communications were made in confidence. The Authority must clarify these matters. Conclusion Accordingly, the Authority is ordered to provide Mr. Herman 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. Mr. Herman may appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman