Marlon Bayas v. Brockton, City of - Public Schools (SPR 20251668)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2025 SPR25/1668 Bou Lim Record Access Officer Brockton Public Schools 43 Crescent Street Brockton, MA 02301 Dear Mr. Lim: I have received the petition of Marlon Bayas, Esq. appealing the response of the Brockton Public Schools (School) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On May 27, 2025, Attorney Bayas requested the following records: [1] Any and all digital communication between Assistant City Solicitor ... to Brockton Public Schools Superintendent ... and/or Mayor ... and any other agents with managerial authority, and/or ..., BHS Administration and BPS Security... regarding [identified individuals] while employed at Brockton Public Schools on May 1, 2025 and beyond. [2] [A]ny and all communication regarding the termination of [an identified individual] following an incident that occurred on May 2, 2025. The School provided a response on May 28, 2025. Unsatisfied with the School’s response, Attorney Bayas petitioned this office and this appeal, SPR25/1668, 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). 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

Bou Lim SPR25/1668 Page 2 June 26, 2025 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 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 June 10, 2025 appeal, Attorney Bayas stated, “[b]ased on information and belief, the Brockton City Solicitor has a known practice of denying public records requests unless directed to respond by your office. For these reasons, we are urging your office to assist in the production of the requested records as soon as possible.” The School’s May 28th response In its May 28, 2025 response, the School cited Exemption (a) and the attorney-client privilege, to withhold records responsive to Item 1 of the request and Exemption (c) to withhold records responsive to Item 2 of the request. Item 1 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Bou Lim SPR25/1668 Page 3 June 26, 2025 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the School cites G. L. c.150E, §5A, as it operates through Exemption (a) of the Public Records Law to withhold records responsive to Item 1 of the request. The School states “. . . any communications between employee organizations and their members (such as the employee in question) may be present on the District’s email server, any such communications they are not public records and are exempt from disclosure under M.G.L. c.150E, §5A and M.G.L. c.4, §7(26)(a).” Based on the School’s response, it is uncertain whether it possesses the requested records and how the cited statute, either specifically or by necessary implication permits the School to withhold the requested records from disclosure. The School must clarify this matter. 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 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). Under attorney-client privilege, the School stated the following: To the extent any such communications exist, they were sent to such employees/ officials from their legal counsel for the purpose of legal advice in the course of an attorney-client relationship. As such, the communications are confidential under the attorney-client privilege and exempt from disclosure under the Public Records Law ... See Suffolk Construction v. DCAM, 449 Mass. 444 (2007) (confidential communications between public officers and employees and

Bou Lim SPR25/1668 Page 4 June 26, 2025 governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege and are exempt from disclosure under the public records law). Based on the School’s response, I find that the School must clarify whether 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 and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, per G. L. c. 66, § l0A(a), I find the School must provide a detailed description of each of the communications withheld, 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. Item 2 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). First Clause – Personnel Information While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel

Bou Lim SPR25/1668 Page 5 June 26, 2025 information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. Second Clause – Privacy Analysis under the second clause of 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. 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 the second clause of 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). 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. In its response, the School asserts: Any communications regarding the termination of an employee constitute information about employees and/or personnel matters that are exempt from public disclosure under M.G.L. c. 4, §7(26)(c) ... Under Massachusetts law, personnel and medical information which is of a personal nature and which relates to a specifically named individual is absolutely exempt from disclosure. See Wakefield Teachers Assn. v. Sch. Comm. of Wakefield, 431 Mass. 798, 800 (2000). 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 ... pertaining to a particular employee, may be withheld pursuant to the personnel information exemption... Based on the School’s response, it is unclear what types of records it possesses that are responsive to the request nor how the records, in their entirety, constitute one of the core categories of personnel information that is ‘useful in making employment decisions regarding an

Bou Lim SPR25/1668 Page 6 June 26, 2025 employee. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co., 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Further, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Attorney Bayas 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. Attorney Bayas may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Marlon Bayas, Esq.