Catherine Foster v. Adams, Town of - Town Clerk (SPR 20253753)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2025 SPR25/3753 Haley Meczywor Town Clerk Town of Adams 8 Park Street Suite 110 Adams, MA 01220 Dear Ms. Meczywor: I have received the petition of Catherine Foster appealing the response of the Town of Adams (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 10, 2025, Ms. Foster requested “all documents that reflect” the following: [1] The reason(s) [an identified individual] was placed on administrative leave; [2] The nature and status of any related investigations, internal or external; and [3] Any communications, including but not limited to emails, memoranda, text messages, letters or notes, between town officials, staff, or counsel pertaining to the leave or investigation. The Town responded on November 25, 2025. Unsatisfied by the response, Ms. Foster petitioned this office and this appeal, SPR25/3753, 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 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

Haley Mecsywor SPR25/3753 Page 2 January 6, 2025 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. See 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 November 25th Response In its November 25, 2025 response, the Town withheld all records in its custody citing attorney-client privilege, Exemption (n) and Exemption (c) of the Public Records Law, and the Open Meeting Laws. See G. L. c. 4, § 7(26)(c), (n). Current Appeal In her December 21, 2025 petition to this office, Ms. Foster argued the following: [1] The Town improperly withheld all records under Attorney-Client Privilege… [2] Exemption (n) (Investigatory exemption) is misapplied… [3] The Town’s use of Exemption (c) (Privacy) is legally flawed… [4] The Town improperly withheld Executive Session minutes under the Open Meeting Law… [5] The Town failed to comply with its duty to segregate non-exempt information… 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, 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 ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a).

Haley Mecsywor SPR25/3753 Page 3 January 6, 2025 In its November 25th response, the Town stated, “the Town has withheld records containing attorney-client communications. Those records, or portions thereof, contain communications between Town officers and their legal counsel undertaken for the purpose of obtaining or providing legal advice or assistance, which are exempt from disclosure pursuant to the holding in Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007), until such attorney-client privilege is waived.” The Town further explained, “[e]mails dated September 2, 2025 through November 5, 2025 among Town Labor and Employment Attorney . . . and Interim Town Administrator . . . containing legal advice from Attorney . . . to his client, the Town Administrator, concerning [an identified individual’s] current administrative leave.” Based upon the Town’s response, I find the Town has not satisfied the requirements articulated in Suffolk. Specifically, the Town must clarify whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. The Town must also provide a privilege log which includes the names of the author and recipients, the date, the substance of such records, and the grounds upon which the attorney- client privilege is being claimed, as required by G. L. c. 66, § 10A(a). Open Meeting Law In its November 25th response, the Town identified “Select Board Executive Session meeting minutes dated September 8, 2025” as responsive to Ms. Foster’s request. Additionally, the Town stated, “[t]he Executive Session minutes involve discussion of personnel matters, including ‘the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.’ Disclosure of these records would constitute an unwarranted invasion of personal privacy and would defeat the lawful purpose of the Executive Session.” The Town’s response raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address this matter in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session meeting minutes withheld under the Open Meeting Law. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or date 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

Haley Mecsywor SPR25/3753 Page 4 January 6, 2025 G. L. c. 4, § 7(26)(c). 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 interest 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. Under Exemption (c), the Town argues, “[i]n the instant case, the requested documents contain details of a personal nature that are not available from other sources and in some instances could, if disclosed, result in personal embarrassment of an individual of normal sensibilities. In light of the privacy interests of [an identified individual] and other individuals who are referenced in these records, the records are exempt from disclosure under the Public Records Law.” Based on the Town’s response, it is uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The Town must clarify these matters.

Haley Mecsywor SPR25/3753 Page 5 January 6, 2025 Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. The Town merely cites Exemptions (n) of the Public Records Law without any explanation of its applicability to the responsive records. Based on the Town’s response, it is unclear how the requested records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse

Haley Mecsywor SPR25/3753 Page 6 January 6, 2025 correlation” between the two prongs of Exemption (n) inquiry). Further, the Town did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Town must clarify these matters. Burden of Specificity in Claiming Exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town’s response did not contain the specificity required in a denial of access to public records. The Town did not identify the records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Foster with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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. Sincerely, Manza Arthur Supervisor of Records cc: Catherine Foster Holli Jayko