Commonwealth Transparency v. Malden, City of (SPR 20242302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2024 SPR24/2302 Carol Ann 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 Appeals The request was the subject of previous appeals. See SPR24/1967 Determination of the Supervisor of Records (July 22, 2024) and SPR24/2083 Determination of the Supervisor of Records (July 31, 2024). In my July 31st determination, I ordered the City to clarify its claims under Exemption (c) of the Public Records Law, and the attorney-client privilege, and to clarify whether it could provide records in the preferred format of the requestor. Subsequently, the City responded on August 14, 2024. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2302, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response to this office and the requestor on August 20, 2024, further reiterating its claims under the attorney-client privilege. 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 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 SPR24/2302 Page 2 August 28, 2024 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 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. Current Appeal In the appeal petition, the requestor contends the following: OpenCommonwealth has no interest in the specific information of family or individual coverage redacted by Malden, however we do not believe that Malden correctly cites the law or exemption in this case, and we do believe that public records requestors should be subject to fees resulting from segregating and redacting this information. [sic] For the purposes of this appeal we request that the SPR make specific findings related to the claims of Malden regarding this exemption. As to the claims of attorney-client communications regarding Ms. Mertz and Ms. Anthony’s communications, these redactions are improper and inconsistent with the well established case-law regarding attorney client communications. Ms. Anthony is NOT an attorney, she works for the City Solicitor who does NOT represen [sic] the Malden Public Schools, and there is NO attorney-client relationship between them. No privilege or exemption can be claimed for this communication. As to the email between Ms. Fallon, to Mr. Oteri and Ms. Mertz, again, Ms. Fallon worked for the City Solicitor’s office, neither she or her office have or do represent the Malden Public Schools, and there is NO attorney-client relationship. No privilege or exemption can be claimed for this communication. The City’s August 14th Response In its August 14, 2024 response, the City provided copies of responsive spreadsheets in redacted form, and cites Exemption (c) of the Public Records law for redacting the records. See G. L. c. 4, § 7(26)(c). Additionally, the City reiterates its claims for redacting two responsive

Carol Ann Desiderio SPR24/2302 Page 3 August 28, 2024 emails pursuant to the attorney-client privilege. 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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 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

Carol Ann Desiderio SPR24/2302 Page 4 August 28, 2024 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 August 14th response, under Exemption (c), the City argues the following: In terms of the payroll and timesheet redactions, they were redacted for health care information that would indicate whether someone has a family or is single. The District believes this information is information of a highly intimate nature because it is about an individual’s personal life. There is no public interest in knowing whether someone has a family or not. It is not relevant to the functioning of the government. When an individual signs up for public service, they are not disclosing whether they have a family or not. It is why Exemption (o) exists to protect similar types of information[.] . . . Moreover, information on use of sick days and personal days is also information of an intimate nature as it relates to an individual’s health and should not be disclosed. This information was also redacted. . . . Certain information, including employee leave information or termination decisions has been redacted in accordance with the exemption set forth at G.L. c. 4, § 7(26)(c). . . . In this case, the balancing test favors redaction of this information as information on illness is highly personal and there is little public interest in knowing the information. A termination decision is a core personnel decision which is protected under Exemption (C). Account numbers were also removed. Upon review of the appeal, it appears the requestor is not objecting to the City’s claims under Exemption (c) for redacting “specific information of family or individual coverage.” Based on the City’s response, it is unclear how the redacted information concerning sick days, personal days, and employee leave and termination constitutes medical information, or one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the City did not demonstrate that the seriousness of any invasion of privacy outweighs the public interest in obtaining the requested information. PETA, 477 Mass. at 292. Consequently, the City has not met its burden to redact this information pursuant to 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)

Carol Ann Desiderio SPR24/2302 Page 5 August 28, 2024 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 (2007); see also Hanover Ins. Co. v. Rapo & 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 not inspect the record but 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 August 14th response, under the attorney-client privilege, the City provides the following information: In terms of attorney-client privileged, [sic] there is an email dated October 18, 2017 from Toni Mertz to Diane Anthony, in which the subject was bus transportation and was for the purpose of seeking legal advice. There is an email dated October 16, 2017 from Kate Fallon to Jon Oteri and Toni Mertz, which was about litigation filed and was for the purpose of seeking legal advice. As noted in the previous determination, in its previous July 22, 2024 response, the City 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. Where the City has now provided descriptions of the substance of each record, I find that based on its August 14th response, and in conjunction with the information and redacted records provided in its July 22nd response, the City has met its burden to withhold the two emails pursuant to the attorney-client privilege. 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

Carol Ann Desiderio SPR24/2302 Page 6 August 28, 2024 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. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency