Foster, Catherine v. Adams, Town of - Town Clerk (SPR 20260695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2026 SPR26/0695 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/3753 Determination of the Supervisor of Records (January 6, 2026). In my January 6th determination, I ordered the Town to clarify its application of attorney-client privilege, Exemption (c), and Exemption (n) to the withheld records. The Town responded on January 21, 2026. Unsatisfied by the response, Ms. Foster petitioned this office and this appeal, SPR26/0695, 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 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 SPR26/0695 Page 2 March 12, 2026 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. 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 January 21st Response In its January 21, 2026 response, the Town withheld all records in its custody citing attorney-client privilege, Exemption (c) and Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). Current Appeal In her March 1, 2026 petition to this office, Ms. Foster argues, “[a]lthough the Town was ordered to clarify its exemption claims and provide a legally sufficient response, the Town’s second denial continues to withhold all responsive records and remains inconsistent with [the Supervisor’s] determination, Public Records Law, and controlling case law…” 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

Haley Mecsywor SPR26/0695 Page 3 March 12, 2026 date, the substance of such record, and the ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its January 21st response, the Town provided a privilege log listing thirteen (13) emails it was withholding under the attorney-client privilege. Specifically, the Town provided an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the ground upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Town stated that the communications were made during the client’s search for legal advice from an attorney in his or her capacity as such, that the communications were made in confidence, and that privilege as to the communications has not been waived. Consequently, I find the Town has met its burden to withhold the thirteen emails listed in its January 21st privilege log pursuant to the attorney-client privilege. 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 G. L. c. 4, § 7(26)(c). First Clause – Personnel Information 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

Haley Mecsywor SPR26/0695 Page 4 March 12, 2026 Teacher’s Ass’n, 431 Mass. at 798. The Town is advised that the Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court in Mack held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. The Court in Mack explained that “the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each ‘relate[d] to a law enforcement misconduct investigation’ and may not be withheld under the privacy exemption.” Id. at 12. Under Exemption (c), the Town identified six (6) responsive records and argued, “[t]o be clear, no internal affairs investigation occurred in this case. The information you have requested falls under the personnel information exemption of (c) as a personal record, i.e., ‘disciplinary determinations’ as opposed to a record generated as part of a police internal affairs investigatory process. The courts have consistently held that an individual’s interest in the privacy of their personnel records outweighs the public’s interest in accessing those records.” Based on the Town’s response, it is unclear how the requested records, in their entirety, constitute personnel information useful in making employment decisions regarding an employee. It is additionally unclear whether segregable portions of the responsive records 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 (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 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

Haley Mecsywor SPR26/0695 Page 5 March 12, 2026 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. 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. 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 disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Under Exemption (f), the Town identified six (6) responsive records and stated, “[t]he investigatory exemption applies to the withheld records because they pertain to an ongoing criminal investigation being conducted by an outside agency (not the Town itself). Disclosure of the records could prejudice law investigative efforts by prematurely revealing relevant evidence and violating the anonymity of voluntary witnesses. Therefore, disclosure of these records would

Haley Mecsywor SPR26/0695 Page 6 March 12, 2026 not be in the public interest at this time.” Although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. The Town did not provide adequate supporting information to demonstrate how disclosure of any segregable portion of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). In addition, the Town must explain whether the record can be redacted to preserve the anonymity of voluntary witnesses. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify these matters. 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