Patrick Higgins v. Fall River, City of - Public Schools (SPR 20251865)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2025 SPR25/1865 Debra Cabral Administrative Assistant to the School Committee Fall River Public Schools 417 Rock Street Fall River, MA 02720 Dear Ms. Cabral: I have received the petition of Patrick Higgins appealing the response of the Fall River Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 10, 2025, Mr. Higgins requested “.pdf file copy of the investigative report regarding former Superintendent [a named individual].” The School responded on June 25, 2025. Unsatisfied with the School’s response, Mr. Higgins petitioned this office, and this appeal, SPR25/1865, 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. If there are any fees associated with a response, a written good faith estimate must be 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

Debra Cabral SPR25/1865 Page 2 July 11, 2025 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. Higgins contends that he is “appealing the redactions, since it makes the report worthless as far as understanding what the overall report found.” The School’s June 25th Response In its June 25, 2025 response, the School provides responsive records in redacted form, and cites Exemptions (c) and (f) of the Public Records Law, along with the attorney-client privilege, for redacting the records. See G. L. c. 4, § 7(26)(c), (f). 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). 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).

Debra Cabral SPR25/1865 Page 3 July 11, 2025 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 June 25th response, under Exemption (c), the School argues the following: Portions of the responsive documents are being withheld because they constitute personnel information as delineated in M.G.L. c. 4, § 7(26)(c), the privacy exemption. . . . In regard to the responsive documents, the District determined that Exemption (c) applies to portions of the documents and has redacted the documents accordingly. Portions of the documents contain “intimate details of a highly personal nature,” regarding specifically named individuals who participated in the investigation, “the disclosure of which may constitute an unwarranted invasion of personal privacy.” Attorney General v. Asst. Comm’r of the Real Property Dep’t. of Boston, 380 Mass. 623, 625 (1980). Specifically, included in these documents are details about disability status, medical condition, family disputes, and other personal details of specifically named employees, all of which the Supreme Judicial Court has deemed to be the type of information that qualifies as “intimate details of a highly personal nature.” Id. at 626, n.2. The public interest in disclosure of this information does not substantially outweigh the employees’ privacy interests. See Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979). Because the subject matter of the report contained intimate details of a highly personal nature, portions of the document that would reveal the identities of the witnesses have been withheld in accordance with Exemption (c). Indeed, the harm caused by disclosing such sensitive information to the public would entail not only embarrassment to individual employees, but also the creation of a clear disincentive to future voluntary participation in internal employment investigations in the public sector. The public interest in disclosure of this information does not outweigh these privacy interests, as disclosure would chill future cooperation in employee conduct investigations. Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such

Debra Cabral SPR25/1865 Page 4 July 11, 2025 disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979); Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its June 25th response, under Exemption (f), the School argues the following: Portions of the responsive documents are also being withheld under Exemption (f) as delineated in M.G.L. c. 4, § 7(26)(f). . . . In this case, disclosure of the statements of persons who volunteered information to Attorney Chu as part of this investigation would have a harmful and chilling effect on the willingness of witnesses to cooperate in such future investigations. Accordingly, those witness statements are being withheld in accordance with Exemption (f). 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

Debra Cabral SPR25/1865 Page 5 July 11, 2025 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 June 25th response, under the attorney-client privilege, the School argues the following: Portions of the documents you have requested are being withheld because they are exempt from disclosure as attorney-client communication. The School Committee engaged the services of the law firm Valerio, Dominello & Hillman, LLC, for the purpose of conducting an impartial investigation of employment matters. The School Committee did not use its own attorneys in order to prevent any conflict of interest or appearance of a conflict of interest. Significant portions of the documents are comprised of the communications made during the School Committee’s search for legal advice from the attorneys at the outside law firm in their capacity as attorneys; the communications were made in confidence; and the School Committee has not waived the attorney-client privilege. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). In accordance with M.G.L. c. 66, § 10A, the District provides the following information about these documents: Author: Attorney Wendy Chu, Valerio, Dominello & Hillman, LLC Recipients: (1) Fall River Public Schools School Committee Members, during Executive Session, in paper copy only (2) Attorney for the School Committee (3) Superintendent Malone and Attorney Date: November 20, 2020 Substance: Consulting attorney’s report and consulting attorney’s executive summary report. These documents reflect information shared by the School Committee in confidence with the attorney, details from the attorney’s investigation of employee allegations of inappropriate employee conduct, and explanations of the attorney’s

Debra Cabral SPR25/1865 Page 6 July 11, 2025 determinations as to whether any violations of District policies occurred. The attorney-client privilege applies to portions of the two documents because there was an attorney-client relationship between the School Committee and Attorney Chu, and the documents are comprised of communications between the School Committee and Attorney Chu that meet the elements established in Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007), namely: (1) the communications were received from the client during the course of the client's search for legal advice from the attorney in her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Initially, the Fall River School Committee contracted with Attorney Wendy Chu for the purpose of conducting an impartial investigation of employment matters and for providing the School Committee with a legal opinion on whether any violations of District policies occurred. The School Committee chose to hire an outside attorney, in lieu of using the District’s attorneys, to prevent any conflict of interest or appearance of a conflict of interest. The documents themselves evidence the attorney-client relationship: “The School Committee engaged the services of Valerio, Dominello & Hillman, LLC ... “ See Document 2, p. 2. “The attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.” Suffolk Const. Co., 449 Mass. at 448. The privilege protects communications between a client and an attorney that are made in confidence for the purpose of giving or obtaining legal advice. See Mass. G. Evid. § 502(b) (2012). McCarthy v. Slade Assoc., Inc., 436 Mass. 181 , 190 (2012). . . . In its pursuit of the legal opinions of Attorney Chu, the School Committee provided Attorney Chu with specific information regarding allegations that had been made, including internal notes of initial investigatory meetings, relevant evidence, and the identity of individual employees who may have had relevant information (parties and potential witnesses). All of these communications to Attorney Chu were made for the sole purpose of obtaining legal advice as to whether or not there was evidence of a violation of School Committee Policy. The documents that are being withheld reiterate the information that was provided in confidence by the School Committee to the attorney, provide a summary of the attorney’s fact-finding, and provide an explanation of the attorney’s legal opinion to the School Committee. The communications were made in confidence to Attorney Chu, so that the School Committee could obtain an impartial and accurate legal assessment. No additional parties were provided with the information provided to Attorney Chu. Witnesses interviewed by Attorney Chu were directed to maintain confidentiality as well. See Document 2, p. 2.

Debra Cabral SPR25/1865 Page 7 July 11, 2025 Additionally, at no time did the School Committee waive the attorney-client privilege. Indeed, proactive steps were taken to ensure the confidentiality of the documents, including convening the School Committee in Executive Session to review the documents, and distributing the documents to the School Committee members in paper copy only. See Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,423 (1997). Therefore, portions of the documents satisfy the requirements of Suffolk Constr. Co. v. Div. of Capital Asset Mgmt. and are exempt pursuant to the attorney-client privilege. Based on the School’s June 25th response, where the School has provided a detailed description of the records redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the dates, the substance, and the grounds for claiming the privilege, and has also confirmed that the communications were made in confidence and that the privilege has not been waived, I find the School has met its burden to redact those portions of the records for which it claims the attorney-client privilege. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (f) claims made by the School to redact the remaining portions of the responsive records, the School must provide this office with an un-redacted copy of the responsive records for in camera inspection, excluding those portions of the records withheld pursuant to the attorney-client privilege. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the School’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously

Debra Cabral SPR25/1865 Page 8 July 11, 2025 impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with an un-redacted copy of the responsive records, excluding those portions of the records redacted pursuant to the attorney- client privilege, for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Patrick Higgins