Cory Bombredi v. Phillipston, Town of (SPR 20251917)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 16, 2025 SPR25/1917 Adam Lamontagne Chief Administrative Officer Town of Phillipston 50 The Common Phillipston, MA 01331 Dear Mr. Lamontagne: I have received the petition of Cory Bombredi appealing the response of the Town of Phillipston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2025, Mr. Bombredi requested: [1] Payroll records for [an identified individual] between September 1, 2019, and his retirement from the town of Phillipston, MA. [2] A copy of the fire department study referenced in the August 14, 2019, Select Board meeting. [3] A final copy of the investigation report produced by [an identified individual’s] investigation into the Fire Department after ongoing internal reports of missing equipment, missing files and altered reports. [4] A list of employees between the months of July 2019 and April 2020 that were out on administrative leave or investigatory suspension. On January 13, 2025, Mr. Bombredi modified the first item of his request to seek “payroll records to reflect the dates of September 1, 2018, to [an identified individual’s] retirement for ‘medical reasons.’” Previous Appeals and In camera Review This request was the subject of previous appeals and a subsequent in camera review. See SPR25/0278 Determination of the Supervisor of Records (January 31, 2025); SPR25/0485 Determination of the Supervisor of Records (March 4, 2025); SPR25/0965 Determination of the 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

Adam Lamontagne SPR25/1917 Page 2 July 16, 2025 Supervisor of Records (April 24, 2025) and SPR25/1303 Determinations of the Supervisor of Records (May 22, 2025 and June 17, 2025). In my June 17th determination, following in camera review, I found that the Town had not met its burden to withhold the record responsive to Item 3 of the request in its entirety under Exemption (c) of the Public Records Law, and I ordered the Town to review the record, redact where necessary, and provide the responsive record to Mr. Bombredi. Subsequently, the Town responded on July 1, 2025. Unsatisfied with the Town’s response, Mr. Bombredi petitioned this office, and this appeal, SPR25/1917, 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 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. Bombredi argues the following: [T]he Town has issued a report that: - Blackens entire pages without citation or justification. - Removes factual timelines, job functions, and administrative decisions. - Suppresses core findings, summaries, and organizational conclusions. . . . The Town’s legal counsel . . . justifies these redactions using precedent that is wholly inapplicable or misleadingly cited[.] The Town’s July 1st Response In its July 1, 2025 response, the Town provides a responsive record in redacted form, and cites Exemptions (c) and (d) of the Public Records Law, along with the attorney-client privilege

Adam Lamontagne SPR25/1917 Page 3 July 16, 2025 for redacting the responsive record. See G. L. c. 4, § 7(26)(c), (d). 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). First clause 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. Second clause 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. This clause 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

Adam Lamontagne SPR25/1917 Page 4 July 16, 2025 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). This clause 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 July 1st response, the Town explains that “large portions of the report are . . . redacted pursuant to Exemption (c) to the Public Records Law,” and argues the following: Here, the report investigates and provides recommendations with respect to management practices and other hiring, promotional, and resignation issues arising in the Fire Department, which report relied heavily on confidential documents obtained from various employees’ personnel files, discusses certain employment decisions that were made, discusses information contained in personnel files throughout the report, such as interview scoring summary sheets and complaints received, attaches confidential documentation relied on as exhibits to the report, and which ultimately summarizes certain employment decisions made by the Town, including without limitation who was put on administrative leave and why. Accord Wakefield Teachers Ass’n, 431 Mass. at 798 (“disciplinary documentation” such as investigatory report of teacher’s misconduct, was exempt from disclosure). This investigatory report includes specific recommendations and policy changes as to the Town’s hiring, promotion, termination and other employment practices. The Town’s disclosure of such information would directly hinder its ability to function effectively as an employer, including with respect to its ability to investigate employees, investigate allegations of misconduct, and to make disciplinary decisions concerning said employees based on independent reports it commissions. As such, the enclosed report prepared by special counsel may be redacted as it involves confidential personnel matters and misconduct or mismanagement investigations forming the basis for certain employment decisions made by the Town. Accord Wakefield Teachers Ass’n, 431 Mass. at 798 (information that is “useful in making employment decisions regarding an employee” is “absolutely exempt from disclosure”).

Adam Lamontagne SPR25/1917 Page 5 July 16, 2025 Further, the requested records contain “other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” In this respect, the Town has again undertaken a further thorough and individualized analysis of the three factors articulated by the Court in PETA, 477 Mass. at 292, and the report requested. The Town believes that disclosure of the report would result in personal embarrassment to various individuals of normal sensibilities, as there are allegations of highly personal matters relating to the reputation of various individuals, including the propriety of certain business decisions, relationships between employees, familial relationships, potential conflicts of interest, and other such matters. Id. (Exemption (c) protects from public disclosure a variety of personal information, including, inter alia, “reputation”). Finally, this investigative report is not available from any other sources, as it exists solely in the custody of the Town and counsel, and as noted, the privilege has not been waived. As such, it has been redacted pursuant to Exemption (c). Based on the Town’s July 1st response, and in conjunction with my previous in camera review, I find that the redacted portions of the record responsive to Items 3 of the request fall within the core categories of personnel information described in Wakefield as useful in making employment decisions regarding an employee, and are exempt under Exemption (c). See Wakefield, 431 Mass. at 798; Colman M. Herman v. City of Boston, et. al., Suffolk Superior Court, Civil Action No. 2384CV2395 at 6 (June 20, 2024) (“personnel files . . . shall be considered exempt under exemption (c) and Wakefield.”). Consequently, I find that the Town has met its burden to redact responsive record under Exemption (c). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Adam Lamontagne SPR25/1917 Page 6 July 16, 2025 The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. 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 July 1st response, under the attorney-client privilege and Exemption (d), the Town argues the following: The report is redacted pursuant to the attorney-client privilege and attorney work product doctrine. See Suffolk Construction Co. v. Div. of Capital Asset Management, 449 Mass. 444, 449- 450 (2007) (confidential communications between 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 not subject to disclosure under the public records law); DaRosa v. City of New Bedford, 471 Mass. 446 (2015) (work product applicable under exemption (d) to Public Records Law); General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) (“[t]he purpose of Exemption (d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision”).

Adam Lamontagne SPR25/1917 Page 7 July 16, 2025 In this regard, the entire report was commissioned and prepared by special counsel for the Town and is marked confidential. While the Town is providing this investigation report with redactions pursuant to the Supervisor’s determination, please be advised that such disclosure does not constitute a waiver of the attorney-client privilege, and the Town expressly reserves the right to assert the same. In commissioning this report, the Town sought legal and policy advice on certain investigatory matters occurring within the Phillipston Fire Department from special counsel. The legal advice and recommendations provided in the report, as well as the conclusions reached by special counsel, are therefore protected by the attorney-client privilege and the attorney work product doctrine. The report also has not been provided to any third party and the privilege has not been waived. Although the Supervisor has ordered certain portions of the report to be produced, the Town reiterates its position that the entire report is subject to this privilege and in complying with the Supervisor’s order, the Town does not intend to waive the privilege in any capacity. While the Town is aware that public employees may have a diminished expectation of privacy in their employment and that the public has an interest in knowing about the conduct of its public officials, these interests are tempered by the Town’s ability to seek legal advice and investigate internal matters without subjecting itself to potential liability from public disclosure of privileged reports. Indeed, the Appeals Court recently affirmed that neither the Public Records nor Open Meeting laws waive these otherwise applicable privileges for municipal corporations, consistent with longstanding case law allowing municipalities to seek legal and policy advice on its departmental functioning in confidence. Kay v. Concord, 105 Mass. App. Ct. 366, 372 (2025) (endorsing that attorney client privilege applies “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived”). Requiring the Town to disclose a confidential report prepared by its special counsel, in which specific recommendations have been made as to legal and policy matters, would intrude heavily into the Town’s ability to seek and obtain confidential legal advice regarding personnel matters and subjects the Town to an increased risk of liability arising from public disclosure. The Public Records Law does not require the Town to waive its privilege in this manner. As such, significant portions of the report have been redacted on this basis. In this case, where the Town has met its burden to redact the responsive record pursuant to Exemption (c) of the Public Records Law, I find it is unnecessary to address the Town’s claims under Exemption (d) and the attorney-client privilege.

Adam Lamontagne SPR25/1917 Page 8 July 16, 2025 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Bombredi is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Cory Bombredi