Martha Barrows v. Holbrook, Town of - Town Clerk (SPR 20250283)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2025 SPR25/0283 Jeanmarie Tarara Town Clerk Town of Holbrook 50 North Franklin Street Holbrook, MA 02343 Dear Ms. Tarara: I have received the petition of Martha Barrows appealing the response of the Town of Holbrook (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2024, Ms. Barrows requested the following: [1] ... emails from July 24, 2024 to present ... from and to [identified individuals][;] [2] ... emails from June 8, 2024 to present ... from and to [identified individuals][.] The Town responded on November 8, 2024. Unsatisfied with the Town’s response, Ms. Barrows petitioned this office and this appeal, SPR25/0283, 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. 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

Jeanmarie Tarara SPR25/0283 Page 2 February 12, 2025 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 her appeal, Ms. Barrows contests the redactions made in the records under Exemption (c) and claims that some emails were missing. The Town’s November 8th response In its November 8, 2024 response, the Town provided the requested records and cited Exemptions (c) and (o) of the Public Records Law in support of redactions, as well as the attorney-client privilege in support of withholding one document. Exemption (c) Exemption (c) permits the withholding of: 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

Jeanmarie Tarara SPR25/0283 Page 3 February 12, 2025 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 response, the Town states, “...personal phone numbers and emails of members of the public were redacted pursuant to Exemption (c) of the Public Records Law.” The Town further stated that “[i]nformation constituting an employee’s employment status [and] [i]nformation about an employee’s leave status and employee concerns about said employee ... was redacted pursuant to Exemption (c) as personnel file information which would be useful in making employment decisions about an employee.” Based on the Town’s response, I find that the Town may permissibly redact personal phone numbers and emails of members of the public under Exemption (c) of the Public Records Law. However, although the Town indicates that it redacted certain personnel information from the records, it is unclear how the information redacted constitutes one of the core categories of personnel information that is useful in making employment decisions regarding an employee. The Town must clarify this matter. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter l50E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o).

Jeanmarie Tarara SPR25/0283 Page 4 February 12, 2025 In its response, the Town states, “...personal phone numbers and emails of employees were redacted pursuant to Exemption (o) of the Public Records Law.” Upon review, the Town has met its burden to redact personal phone numbers and emails of employees pursuant to Exemption (o) of the Public Records Law. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). 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, 449 Mass. at 450 n.9; 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. The indices shall include 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, § l0A(a). 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 response, the Town stated, “…one responsive document was withheld as attorney- client privileged, as the document contained the content of discussions between the Joint Water Board and its attorney regarding a Cyclopure Pilot Study for an existing filter, for purposes of obtaining legal advice which has not been shared with the public.” Based on the Town’s response, it is unclear whether the withheld document contained communications that were made in confidence. Further, under G. L. c. 66, § 10A(a), 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, is required to claim that a record is privileged. Consequently, although the Town

Jeanmarie Tarara SPR25/0283 Page 5 February 12, 2025 provides the substance of the record, I find the Town must provide a detailed description of the record that includes the names of the author and recipients, the date, and grounds upon which the attorney-client privilege is being claimed. Conclusion Accordingly, the Town is ordered to provide Ms. Barrows with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Ms. Barrows may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Martha Barrows