Colman Herman v. Executive Office of Housing & Economic Development (SPR 20241435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 28, 2024 SPR24/1435 Robert McGovern, Esq. Records Access Officer Executive Office of Housing & Economic Development 1 Ashburton Place Boston, MA 02114 Dear Attorney McGovern: I have received the petition of Colman Herman appealing the response of the Executive Office of Housing & Economic Development (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2024, Mr. Herman requested, “…copies of any and all internal and external communications related to [an identified individual] for the period January 1, 2024 to the present. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes….” Following a telephone conference between Mr. Herman and the Office, Mr. Herman modified his request to include, “…only those internal and external communications pertaining to [an identified individual]’s resignation from his position… at MassDevelopment….” The Office provided a response on May 10, 2024. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR24/1435, 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. 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 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

Robert McGovern, Esq. SPR24/1435 Page 2 May 28, 2024 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 Office’s May 10th response In its May 10, 2024 response, the Office stated that the records were withheld pursuant to Exemption (c) of the Public Records Law and pursuant to attorney-client privilege. Current Appeal In his appeal, Mr. Herman states, “[the Office]’s claim of Exemption (c) … fails, because it lacks the specificity required by the public records law.” Mr. Herman also states, “… [the Office] fails to comply with all of the requirements laid out by the Suffolk court for properly claiming attorney-client privilege. For example, [the Office did] not provide the required index….” 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). 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

Robert McGovern, Esq. SPR24/1435 Page 3 May 28, 2024 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 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 May 10, 2024 response, the Office asserted: [W]e are withholding email communications between [an identified attorney] and the attorney representing [an identified individual] related to negotiations over the terms of [an identified individual]’s separation…. We have reviewed these records and determined the communications (1) constitute personnel information that is categorically exempt under the privacy exemption and (2) the public interest weighs in favor of withholding these communications, given the need for agencies to negotiate resolutions to disputes without costly litigation. See Globe Newspaper Co. v. Executive Office of Admin. and Finance, 2011 WL 3241914 (Mass. Super. Ct. April 25, 2011)…. Based on the Office’s response, it is unclear how the records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. Also, it is uncertain 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. Further, the Office 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. In addition, it is unclear if the Office could provide segregable portions of the responsive records. Any non-exempt segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify these matters.

Robert McGovern, Esq. SPR24/1435 Page 4 May 28, 2024 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, 450 n.9 (2007); 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). Citing attorney-client privilege in its May 10, 2024 response, the Office states the following: [1] We are withholding all records that consist of communications between or among [identified Office employees and an identified attorney], all of which are soliciting or providing legal advice, and therefore are subject to attorney-client privilege. [2] We also are withholding, under the common interest doctrine of the attorney client privilege, emails between [an identified attorney] and … the acting General Counsel at MassDevelopment. The common interest doctrine enables both [the Office] and MassDevelopment to share confidential attorney-client privileged materials and communications for the purpose of rendering legal advice without destroying or waiving the attorney client-privilege…. These emails concerned the board meeting chaired by [an identified individual] at which the MassDevelopment board accepted [an identified individual]’s resignation. Upon review, the Office has not satisfied the requirement that the communications were received from an attorney during the course of the Office’s search for legal advice from that attorney in his or her capacity as such. Further, the Office has not satisfied the requirement that the communications were made in confidence. Additionally, the Office has not satisfied the requirement that the privilege as to these communications has not be waived. Finally, the Office has not provided a detailed description of the withheld records, including the names of the author and recipients, the date, the substance of such record, and the ground upon which the attorney- client privilege is being claimed in accordance with G. L. c. 66, § 10A(a).

Robert McGovern, Esq. SPR24/1435 Page 5 May 28, 2024 Consequently, I find that the Office did not meet its burden of specificity in claiming Exemption (c) and attorney-client privilege to withhold the records from disclosure. Conclusion Accordingly, the Office 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 Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman