Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2024 SPR24/2083 Carol Desiderio City Clerk City of Malden 215 Pleasant Street Second Floor, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2024, the requestor sought, “…any email communications from: [an identified email address] to: [an identified email address]. This request includes but is not limited to emails and calendar entries… This request seeks responsive documents to be delivered in electronic format and in the format which they are regularly maintained….” Previous Appeal The request was the subject of a previous appeal. See SPR24/1967 Determination of the Supervisor of Records (July 22, 2024). In my July 22, 2024 determination, I learned the City provided a supplemental response on July 9, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2083, 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 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

Carol Ann Desiderio SPR24/2083 Page 2 July 31, 2024 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. 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 July 22nd response In its July 22, 2024 response, City provided a series of documents and cited Exemption (c) of the Public Records Law and attorney-client privilege to redact some of the responsive records. See G. L. c. 4, § 26(c). Current Appeal In the appeal petition, the requestor stated: …[the City] claims that their redactions are proper under two exemptions; Attorney Client Privilege, and Privacy under Exemption C: Only one of the redacted emails appears to be possibly attorney-client privileged, however, without a privilege log, and without the knowledge of the subject of the privileged email and attachment there is no way to validate if the privilege still exists or has been waived and whether a legitimate legal purpose to continue to withhold public records from the public remains. Applying [Exemption C analysis] standards forbids [the City] from withholding or redacting any of the responsive records under Exemption C; “personal emails, account numbers” are not redactable under Exemption C and there is no evidence of any claimed “health care exemptions” beneath the redactions made by [the City] or whether said exemptions are redactable under Exemption C…. [The City] has claimed attorney-client privilege with no basis to do so and… improperly redacted responsive records. [We] request… a privilege log for all claimed attorney-client exemptions and that the [Supervisor of Records] review in-camera all other redactions and order [the City] to produce any and all improperly redacted records without redactions. Exemption (c) Exemption (c) applies to:

Carol Ann Desiderio SPR24/2083 Page 3 July 31, 2024 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 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 initial July 9, 2024 response, the City asserted, “… the responsive records included personnel record information or private personal information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law…. In this case, personal emails, account

Carol Ann Desiderio SPR24/2083 Page 4 July 31, 2024 numbers, information on health care exemptions had to be redacted under Exemption (c). Moreover, a letter placing an employee on paid administrative leave was redacted.” In its July 22, 2024 response, the City stated: … in terms of redactions of personal email addresses and cell phone numbers, the public records guide explicitly allows redactions of this information…. Moreover, information related to the medical and healthcare choices of employees is protected by Exemption (c) of the Public Records Law, the Privacy Exemption, and thus has been redacted because the health care costs would indicate whether the individuals have a family or are single and individual choices on health care needs. The disclosure of individual family compositions government officials and individual choices on health care would not shed light on whether government officials are carrying out their duties in a law-abiding and efficient manner. As a result, there should be no disclosure of this information. Based on the City’s response, to the extent the City has redacted medical information, personal email addresses and account numbers, the City may permissibly withhold such information from disclosure pursuant to Exemption (c) of the Public Records Law. However, with respect to other redacted portions of the record, such as unspecified timesheet redactions and payroll redactions, it is unclear how these redacted portions of the record 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. As a result, I find that the City did not meet its burden in claiming Exemption (c) to redact portions of the responsive records. 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

Carol Ann Desiderio SPR24/2083 Page 5 July 31, 2024 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 initial July 9, 2024 response, the City asserts, “…the records contained the content of discussions between the [City] and its attorneys, for purposes of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege…. In this case, the correspondence was only with [City] staff and their attorneys for soliciting legal advice. The school committee never voted to waive the privilege and the documents have not been released. Accordingly the records were redacted for attorney-client privilege.” In its July 22, 2024 response, the City asserts, “the [City] redacted the substance of attorney-client privileged emails as well as emails requesting legal advice. However, the date, sender, recipient, and subject information on each of the emails with redactions and emails with redacted documents attached remain intact, which together constitutes a privilege log under the Public Records Law…. The fact that this information remains shows the redactions were communications with its attorneys.” Upon review, the City has satisfied the requirement that the communications were received during the course of the City’s search for legal advice from the attorney in his or her capacity as such. Further, the City has satisfied the requirement that the communications were made in confidence and the requirement that the privilege as to these communications has not been waived, because the City stated that the records in question have not been shared with the public and the committee in question has not waived the privilege. Although portions of the emails were redacted, the City has left intact some of the information required under G. L. c. 66, § 10A(a), including the dates, and the names of the author and recipients. However, based on the redacted emails provided by the City, where the subject lines merely state “privileged & confidential attorney client privilege communication,” I find that the substance of the communications is not clear. Therefore, I find that the City has not met its burden to redact the record(s) under attorney-client privilege and must provide a privilege log which includes descriptions of the substance of each record, as required by G. L. c. 66, § 10A(a). Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In its appeal, the requestor states:

Carol Ann Desiderio SPR24/2083 Page 6 July 31, 2024 … [the City] purposefully and intentionally mixed the responsive documents so that it is impossible to decipher which attachment belongs to which email. This is neither as requested nor as the records are regularly maintained…. The production was made in a completely haphazard and disorganized fashion - not in the manner in which records are regularly kept: [1] Converting what are electronic records into PDFs; [2] Producing records that don’t identify parties blind copied; [3] Not revealing what attachments accompanied a particular email but apparently mixing in attachments through the various emails and attachments; [4] Not producing documents in any date order; [5] Not providing specifically requested metadata; [6] Not providing any log of their redactions or identifying specific exemptions; [7] Pages 83-110, 114-129, 137-164, 173-186 for example are illegible and improperly provided…. [The City] has prior argued and admitted that [the City] dumped duplicates, attachments, without reference to the original email, in a disemboweled date order as [the City]’s prerogative; Again the records were requested specifically “…in the format in which they are regularly maintained.” Which is by date received and sent ascending and with attachments directly associated with each communication without duplicates. [We] request… all responsive records with attachments and metadata in the form that they are regularly kept In its July 22, 2024 response, the City asserts, “…it was proper for [the City] to convert the records into a pdf to allow for redactions and [the City] has no obligation to organize or collate the records in a particular order. [The City] cannot provide the records in any other way.” In light of requestor’s appeal, with respect to the illegible excel files, I find the City must clarify whether the responsive excel files can be provided in a legible format or their original format. Conclusion Accordingly, the City is ordered to provide the requestor 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 this response to this office at pre@sec.state.ma.us. The requestor may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1).

Carol Ann Desiderio SPR24/2083 Page 7 July 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency