Jim Haddadin v. Lowell, City of - Law Department (SPR 20191685)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords September 3, 2019 SPR19/1685 Stacie M. Moeser, Esq. Assistant City Solicitor City of Lowell -Law Department 3 7 5 Merrimack Street, 3rd Floor Lowell, MA 01852-5909 Dear Attorney Moeser: I have received the petition of Jim Haddadin appealing the response of the City of Lowell (City) to a request for public .records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Haddadin requested: • [A]ll internal investigation records pertaining to Lowell Police Officer Kevin Garneau, including summary reports or notices provided to Officer Garneau regarding the initiation of internal investigations; • All written records of citizen complaints filed against Lowell Police Officer Kevin Garneau. Previous appeal This request was the subject of a previous appeal. See SPR19/1410 Determination of the Supervisor of Records (July 30, 2019). In my July 30th detennination I ordered the City of Lowell Police Department (Department) to provide Mr. Haddadin with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The City responded on August 12, 2019. Mr. Haddadin appealed and SPR19/1685 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Stacie M. Moeser, Esq. SPR19/1685 Page 2 September 3, 2019 form or characteristics, made or received by any officer or employee of any town 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, § IO(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 a11 exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal The City initially responded to this request by providing redacted responsive records and indicating others had been withheld. In my July 30th detennination I found it was unclear which specific records are contained within the internal investigation reports and which specific exemption(s) the City claims applies to those records or portions thereof. The City's August 12th response describes 10 categories ofrecords that comprise the contents of the internal investigation at issue in the request. The City explains, in part, that "[i]n the c01Tesponding criminal case which has already been indicted, Commonwealth v. Kevin Garneau, Middlesex Superior Court docket number 1981 CR00261, the Honorable Justice Robert L. Ullman ordered the impoundment of the Statement of the Case in response to a motion of the Commonwealth and after a hearing on July 24, 2019." You note that "[ i]n allowing the motion and ordering impoundment, the Court found that 'the 'sensitive nature' of the case outweighed public interest." The City suggests "[t]he same standard must be applied to all requests for documents relating to the criminal matter while it is pending, no matter whether efforts are made to obtain materials thtough a public records request or through the criminal docket. Any release of infonnation may be in violation of a standing court order and certainly would be contrary to the Court's rnling. See Mass. R. Impound. P. Rule 8. Each and every page in the internal investigation report contains information relating to the ongoing investigation as described above. No portion is segregable and any attempt at the required redactions would render the pages substantially meaningless. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 383-384 (2002); Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427,438 (1983)." Although the City references the Judge's order from July 24, 2019 and suggests "[ a ]ny release of information may be in violation of a standing court order and certainly would be contrary to the Court's rnling," I find the City has not met its burden to show how this order operates through an exemption to the Public Records Law to allow for the withholding of responsive records. See G. L. c'. 66, § IO(b )(iv) (written response must" ... provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). Further, it is uncleai' how the July 24th order prevents disclosure of all

Stacie M. Moeser, Esq. SPRI9/1685 Page 3 September 3, 2019 10 categories of records at issue in this appeal. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). Notwithstanding this argument regarding this July 24th court order, the City contends that G. L. c. 4, § 7(26)(a),(f); G. L. c. 41, § 97D; and Mass. R. Crim. P. 5(d) apply to the responsive records. However, prior to analyzing the City's claims under these exemptions, I find it is first necessary to detem1ine whether the July 24th court order applies to the entirety of the responsive records. Conclusion Accordingly, the City is ordered to provide Mr. Haddadin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jim Haddadin