Malden News Network v. Malden, City of (SPR 20243427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2025 SPR24/3427 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Brian DeLacey, of Malden News Network, appealing the response of the City of Malden (City) and the Malden School Committee (Committee) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 11, 2024, Mr. DeLacey requested the following: [R]ecords of School Committee Meeting Minutes from Executive Sessions held on 11/13/23, 12/4/23, and 1/18/24. Please include all PUBLIC RECORDS related to these meetings which were made or received by any public official during any “STAGE” of the minutes creation and approval process: including DRAFT, REVIEW, REVISED, FINAL, APPROVED and AMENDED forms of minutes, whether posted publicly prior to this or not. This requests more than just “FINAL” or “DRAFT” minutes, and extends to any COMMENTS made on any iteration of the minutes associated with these three meetings. Please provide for this request each distinct revision of any record seen by any MEMBER of the SCHOOL COMMITTEE, extending to the MAYOR and the SUPERINTENDENT, including any and all versions of any records which are no longer allowed to be withheld or redacted. The City responded on December 23, 2024 and assigned tracking number 2024-0565 to the request. Unsatisfied with the City’s response, Mr. Lacey petitioned this office, and this appeal, SPR24/3427, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 A. Desiderio SPR24/3427 Page 2 January 9, 2025 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 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 his appeal petition, Mr. DeLacey contends the following: [T]he Records Access Officer provided no records in response, and claims vague, blanket application of exemptions and privilege, by holding firm on wide swaths of unjustified and opaque redactions under claims of attorney-client privilege and G.L. c.4, § 7(26)(a) and (c) and (e). The City’s December 23rd Response In its December 23, 2024 response, the City directs Mr. Lacey to websites where numerous responsive records are available in redacted form. The City explains the following concerning the responsive records: 1. The executive session minutes from November 13, 2023, December 4, 2023, and January 18, 2024 are public in their approved form, and are available and accessible on the Committee’s website, as are the executive session minutes for prior and subsequent meetings. ... 2. The Committee relies on the exemption under G.L. c. 4, § 7(26)(c) and the attorney- client privilege to support the redactions contained in the executive session minutes from November 13, 2023, December 4, 2023, and January 18, 2024 and the continued withholding of the redacted portions. 3. The Committee relies on the exemption under G.L. c. 4, § 7(26)(c) and the attorney- client privilege to deny requests for draft, review, revised, approved and amended executive session minutes and other materials regarding the executive sessions for November 13, 2023, December 4, 2023, and January 18, 2024 beyond those publicly released.

Carol A. Desiderio SPR24/3427 Page 3 January 9, 2025 4. The Committee relies on the exemption under G.L. c. 4, § 7(26)(a) to support redactions contained in the executive session minutes from November 13, 2023 related to Unit B discussions. 5. The Committee relies on the exemption under G.L. c. 4, § 7(26)(e) to deny requests for notes, notebooks, drafts, comments and other materials to the extent that they are personal to the Committee members and are not maintained as part of the files of the governmental unit. 6. To the extent that the requests seek records that currently do not exist, the Committee states that the Public Records Law does not require the Committee to create records. Open Meeting Law In its December 23rd response, the City explains the following: [I]n OML2024-219, a determination under the Open Meeting Law dated November 6, 2024, the Assistant Attorney General determined that the Committee could continue to withhold executive session minutes of November 13, 2023 regarding Unit B discussions under the Open Meeting Law. As such the Committee relies on this determination and the exemption under G.L. c. 4, § 7(26)(a) to support those continued redactions. See G.L. c. 4, § 7(26)(a) exemption for records that are “specifically or by necessary implication exempted from disclosure by statute.” Determination OML2024-219 also ordered the Committee: to release the minutes of its November 13 and December 4 executive sessions without redaction of the portions related to the contract negotiations with the former superintendent of schools, collective bargaining Unit A, or the SEIU Local 888 Clerical Unit grievance matter, unless the attorney-client privilege or an exemption to the Public Records Law allows for continued redaction. Please note that G. L. c. 30A, § 18 defines the Open Meeting Law as G.L. c. 30A, §§ 18– 25, inclusive. The City and Mr. DeLacey are 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. In a letter to the City and Mr. DeLacey on November 14, 2024, referenced in Mr. DeLacey’s appeal petition, the AGO addresses the Open Meeting Law issues related to the responsive records, and states the following: [W]e find that the Committee may no longer rely on the Open Meeting Law to justify withholding those portions of its November 13 and December 4, 2023, executive session minutes that relate to contract negotiations with the former superintendent of schools, collective bargaining Unit A, or the SEIU Local 888 Clerical Unit grievance matter. We find that the Committee may continue to rely on the Open Meeting Law to withhold that portion of its November 13 executive session minutes that relates to collective bargaining Unit B.

Carol A. Desiderio SPR24/3427 Page 4 January 9, 2025 Given that an interpretation of the Open Meeting Law falls within the authority of the AGO and not this office, and in light of the AGO’s November 14th letter, I decline to address any Open Meeting Law arguments raised in the City’s response. See G. L. c. 30A, § 23. Accordingly, I will proceed to address the City’s claims under Exemptions (c) and (e) of the Public Records Law, and 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). 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 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.

Carol A. Desiderio SPR24/3427 Page 5 January 9, 2025 Under Exemption (c), the City argues the following: Here, the redactions regarding [the] Superintendent ... relate to the portions of the executive session meetings on November 13, 2023 and December 4, 2023 in which the contract for/of the Superintendent was discussed and involve personnel information relating to a specific named individual, [the] Superintendent ... which is not subject to disclosure under the Public Records law. Based on the City’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain 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 provide 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. PETA, 477 Mass. at 292. The City must clarify these matters. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Under Exemption (e), the City argues that “the Committee further relies on the exemption

Carol A. Desiderio SPR24/3427 Page 6 January 9, 2025 under G.L c. 4, § 7(26)(e) which allows withholding of notebooks and other materials prepared by an employee which are personal and not maintained as part of the files of the governmental unit.” Based on the information provided in the City’s response, it is unclear how the withheld records were personal to an employee, such as personal reflections or notes created to assist in preparing reports. It is also unclear whether or not the records were shared with others. Additionally, the City has not explained whether or not the records were kept in a government file. The City must clarify these matters. 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 (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 December 23rd response, the City argues the following under the attorney-client privilege: In this case, Town Counsel attended the executive session meetings on November 13, 2023, December 4, 2023, and January 18, 2024 and upon request at several points provided confidential legal advice and assistance to the Committee and Committee members on the issues presented. Accordingly, these exchanges have been redacted from the executive session minutes to preserve the attorney-client privilege. Additionally, the City argues the following: For the reasons stated above, the Committee also relies on the exemption under G.L. c. 4, § 7(26)(c) and the attorney-client privilege to deny requests for notes, notebooks, drafts, comments and other materials regarding executive session

Carol A. Desiderio SPR24/3427 Page 7 January 9, 2025 discussions and minutes for November 13, 2023, December 4, 2023, and January 18, 2024 beyond those already publicly released. Based on the City’s response, it is unclear which portions of the meeting minutes have been redacted pursuant to the attorney-client privilege. Additionally, it is unclear what other records have been withheld pursuant to the privilege. Consequently, I find that in accordance with G. L. c. 66, § 10A(a), the City must provide a privilege log consisting of “a detailed description of the record[s], 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.” Further, the City must clarify whether the communications were made in confidence, and that the privilege as to the communications has not been waived. Conclusion Accordingly, the City is ordered to provide Mr. DeLacey 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. Sincerely, Manza Arthur Supervisor of Records cc: Brian DeLacey Howard L. Greenspan, Esq.