Joseph Smith v. Shelburne, Town of - Town Clerk (SPR 20251766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1766 Terry Narkewicz Town Administrator Town of Shelburne 51 Bridge Street Shelburne, MA 01370 Dear Ms. Narkewicz: I have received the petition of Joseph Smith appealing the response of the Town of Shelburne (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 16, 2025, Mr. Smith requested: [1] [A]ll communications sent to the Town of Shelburne, including its police department, from the MTRS school/district, anyone claiming to represent the district, as well as any member of the public since 12/01/24 to the date of this request that related to or referred to [an identified individual], whether he was named directly or was referred to indirectly[;] [2] [A]ll internal communications within the Town of Shelburne, including its police department, from 12/01/24 to the date of this request that related to or referred to [an identified individual], whether he was named directly or referred to indirectly[;] [3] [A]ll communications made by the Town of Shelburne, including its police department, to any person(s) or entities since 12/01/24 to the date of this request that related to or referred to [an identified individual], whether he was named directly or referred to indirectly. Prior Appeal This request was the subject of a prior appeal. See SPR25/1616 Determination of the Supervisor of Records (June 13, 2025). In my June 13th determination, I found that Mr. Smith had not alleged a violation of G. L. c. 66, § 10. 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

Terry Narkewicz SPR25/1766 Page 2 July 2, 2025 The Town responded on June 18, 2025. Unsatisfied with the Town’s responses, Mr. Smith petitioned this office and this appeal, SPR25/1766, 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. Att’y 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 Town’s June 18th Responses In its initial June 18, 2025 response, the Town provided Mr. Smith with several responsive email communications. The Town informed Mr. Smith that it was withholding the remaining responsive email communications in their entirety. Subsequently on June 18, 2025, the Town stated: There are two main exempt categories, one is personnel records, exempt under exemption (c) of the public records law. The other main exempt category is student record and that would be exempt under exemption (a). In support of its claim under Exemption (a), the Town cited the Family Educational Rights and Privacy Act (FERPA) and associated Massachusetts statutes and regulations. The Town withheld a single email communication pursuant to the attorney-client privilege. Current Appeal In his June 18, 2025 petition this office, Mr. Smith contended that the Town had not met its burden to withhold responsive records and that disclosure of the records was in the public interest.

Terry Narkewicz SPR25/1766 Page 3 July 2, 2025 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, 54 (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.” 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. Family Educational Rights and Privacy Act (FERPA) “Education records” under FERPA are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. § 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: The student’s name; (b) The name of the student’s parents or other family member; (c) The address of the student or student’s family; (d) A personal identifier, such as the student’s social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name; (t) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a

Terry Narkewicz SPR25/1766 Page 4 July 2, 2025 reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates 34 C.F.R. § 99.3. Massachusetts Student Records Regulations 603 C.M.R. 23.02 defines “student record” as follows: Student Record shall consist of the Transcript and the Temporary Record, including all information--recording and computer tapes, microfilm, microfiche, or any other materials--regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R. 23.02 (emphasis in original). Additionally, 603 C.M.R. 23.07(4) provides in pertinent part: Access of Third Parties. Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4)(h), no third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent. 603 C.M.R. 23.07(4) (emphasis in original). Based on the Town’s responses, it is unclear how the responsive records can be withheld in their entirety under FERPA, as it operates through Exemption (a). Specifically, it is unclear how how the responsive records constitute “education records” as defined by FERPA. It is additionally unclear whether segregable portions of the responsive records may be provided. 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 Town must clarify these matters.

Terry Narkewicz SPR25/1766 Page 5 July 2, 2025 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). 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 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. Based on the Town’s responses, it is unclear how the responsive records constitute personnel information useful in making employment decisions regarding an employee. It is additionally unclear whether segregable portions of the responsive records may be provided. 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, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Town 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

Terry Narkewicz SPR25/1766 Page 6 July 2, 2025 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 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). Based on the Town’s responses, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify whether the withheld email communication was between the Town and its attorney in the attorney’s capacity as such, whether the communication was made in confidence, and whether the privilege has not been waived with respect to the communication. The Town must also provide a privilege log which includes the names of the author and recipients, the date, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed, as required by G. L. c. 66, § 10A(a). Conclusion Accordingly, the Town is ordered to provide Mr. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Smith may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Smith