Benjamin Davey v. Tisbury, Town of (SPR 20252070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2025 SPR25/2070 J. Hillary Conklin Town Clerk Town of Tisbury 51 Spring Street, Box 1239 Vineyard Haven, MA 02568-0606 Dear Ms. Conklin: I have received the petition of Benjamin Davey appealing the response of the Town of Tisbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2025, Mr. Davey requested, “[a] completely unredacted copy of the KP Law investigation into allegations of misconduct at Tisbury Fire Department and Tisbury Ambulance.” The Town responded on July 16, 2025. Unsatisfied with the response, Mr. Davey petitioned this office and this appeal, SPR25/2070, 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. 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

J. Hillary Conklin SPR25/2070 Page 2 July 30, 2025 The Town’s July 16th Response In its July 16, 2025 response, the Town withheld the requested record pursuant to the attorney-client privilege and Exemptions (c), (d), and (f) of the Public Records Law. Current Appeal In his July 16, 2025 petition to this office, Mr. Davey contended that public interest favored disclosure of the requested record and that the cited exemptions did not permit the record to be withheld in its entirety. Mr. Davey further indicated that a redacted copy of the requested record had been publicly released in response to a prior public records request. 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 - Personnel 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 Corp. 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 Ass’n v. Sch. Comm. 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 Ass’n, 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 Ass’n, 431 Mass. at 798.

J. Hillary Conklin SPR25/2070 Page 3 July 30, 2025 In its July 16, 2025 response, the Town stated: The record sought here involves the privacy rights of specifically named individuals. Further, it encompasses disciplinary personnel information that falls within the scope of the Court’s decision in Wakefield Teachers Association. Please be advised that the fact that you may be named in these records or that these records may be a part of a family member’s personnel file does not give you any greater rights under Exemption (c). See SPR25/1031. Based on the Town’s response, it is unclear how the requested record, in its entirety, constitutes personnel information useful in making employment decisions regarding an employee. It is additionally unclear whether segregable portions of the responsive record can 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 (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify these matters. 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). 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.

J. Hillary Conklin SPR25/2070 Page 4 July 30, 2025 In its July 16, 2025 response, the Town stated: As mentioned, the record sought here is an investigation report pertaining to an internal investigation into conduct within the Town’s Fire Department and the Town’s Ambulance Service that is ongoing. As such, this record will assist the Town in developing its ongoing policy position with respect to such policy matters. As such legal and policy matters have not yet been finalized, and after careful review, the Town has determined that a premature release of such documents could taint its deliberative process. Therefore, this record will also be withheld pursuant to Exemption (d) … This internal investigation has not yet concluded, and this record constitutes attorney work product. Based on the Town’s response, it is unclear what deliberative process remains ongoing or what legal or policy matters may be involved. Additionally, it is uncertain from the Town’s response how the responsive record is “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra- agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Town must clarify these matters. In this case, the Town has not met its burden to withhold the responsive record under the work-product doctrine as it operates through Exemption (d). Specifically, it is unclear how the responsive record constitutes the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Town has not met its burden to show that the responsive record is not factual in nature, nor reasonably completed, nor that the record is interwoven with opinions or analysis leading to opinions. Id. Consequently, I find that the Town has not met its burden of specificity to withhold the responsive record in its entirety pursuant to Exemption (d). The Town is advised that any information contained in this record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. 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

J. Hillary Conklin SPR25/2070 Page 5 July 30, 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.” Id. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; 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 Ret. 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 July 16, 2025 response, the Town stated: The record sought indeed contains investigatory information for a matter that is still ongoing. Further, it contains names and identifying details of voluntary witnesses and the complainant, which may be withheld from disclosure permanently. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 (1979). As such, this record will also be withheld pursuant to Exemption (f). To the extent that the responsive record contains the identifying information of voluntary witnesses, the Town may permissibly withhold such portions from disclosure pursuant to Exemption (f) of the Public Records Law. However, it is unclear how disclosure of any segregable portion of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. 281, 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable

J. Hillary Conklin SPR25/2070 Page 6 July 30, 2025 portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town 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 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). In its July 16, 2025 response, the Town stated: The record sought here is an investigation report prepared and used by Town Counsel for the purposes of facilitating an internal investigation, handled directly by Town Counsel, into conduct within the Town’s Fire Department and the Town’s Ambulance Service … Further, this record is a continuation of the Town receiving ongoing legal advice from Town Counsel in Town Counsel’s capacity as such. Therefore, this record will be withheld pursuant to the attorney-client privilege. Suffolk Const. Co., supra at 450, n.9. Based on the Town’s response, I find that the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify how the responsive record constitutes a communication between the Town and its attorney in the attorney’s capacity as such. Further, in light of the fact that the Town has publicly produced a redacted version of the responsive record, the Town must clarify whether any such communication was made in confidence, and whether the attorney-client privilege has been waived. Conclusion Accordingly, the Town is ordered to provide Mr. Davey 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

J. Hillary Conklin SPR25/2070 Page 7 July 30, 2025 preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Davey 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: Benjamin Davey Steven C. Johnson, Esq.