Jim Haddadin v. Lowell, City of - Law Department (SPR 20192085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2019 SPR19/2085 Stacie M. Moeser, Esq. Assistant City Solicitor City of Lowell - Law Department 375 Merrimack Street, 3rd Floor Lowell, MA 01852-5909 Dear Attorney Moeser: I have received the petition of Jim Haddadin of NBC] 0 Boston appealing the response of the City of Lowell (City) to a request for public records'. G. L. c. 66, § 1O A; 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 repo1is 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 appeals This request was the subject of previous appeals. See SPRl 9/1410 Determination of the Supervisor of Records (July 30, 2019); SPR19/1685 Determination of the Supervisor of Records (September 3, 2019): In my September 3rd determination I ordered the City 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 September 17, 2019. Mr. Haddadin appealed and SPRl 9/2085 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. SPR19/2085 Page 2 October 25, 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, § lO(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. Current appeal The City initially responded to this request by providing redacted responsive records and indicating others had been withheld. In an August 12th response the City describes 10 categories of records that comprise the contents of the internal investigation at issue in the request. The City explained, in part, that "[i]n the corresponding criminal case which has already been indicted, Commonwealth v. Kevin Garneau, Middlesex Superior Court docket number 1981CR00261, 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 noted that "[i]n allowing the motion and ordering impoundment, the Court found that 'the sensitive nature' of the case outweighed public interest." In my September 3rd determination I found that although the City referenced a Judge's order from July 24, 2019 and suggested "[a]ny release of information may be in violation of a standing court order and certainly would be contrary to the Court's ruling," the City had 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. I also found that prior to analyzing the City's other exemption claims it was first necessary to determine whether the July 24th court order applies to the entirety of the responsive records. In its September 1th response the City indicates "[a]t this point, the City has exhausted its knowledge of the court order and the criminal prosecution of Kevin Garneau. As the Public Records Division is aware, the City is not a party to the matter and therefore has limited information as is publicly available." You note that the City contacted the Middlesex County District Attorney's Office regarding this matter. The City asserts "[i]n addition to the exemptions cited in the City's previous correspondence, the City continues to fear that any release of information may be in violation of a standing court order. See Mass R. Impound. P. 8." The City suggests that a hearing be scheduled before Superior Court Justice Robert L. Ullmann, who has been presiding over the criminal case and issued the aforementioned order. You note that "[t]he City will accordingly await instruction from the Public Records Division, and the Attorney General if appropriate, as to how it can be of further assistance in resolving this matter."

Stacie M. Moeser, Esq. SPR19/2085 Page 3 October 25, 2019 In his appeal petition Mr. Haddadin indicates he continues to seek responsive records. He provides a copy of the order of impoundment at issue and notes, in part, "[t]here is no mention of the Lowell Police Department or its internal investigation into Garneau." I find that despite its September 1? l11 response, the City has not met its burden to show how the July 24th order operates through an exemption to the Public Records Law to allow for the withholding ofresponsive records. See G. L. c. 66, § lO(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 unclear how this order prevents disclosure of all 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, § 1O (a) .. Conclusion Accordingly, the City is ordered to provide Mr. Haddadin responsive records 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. Failure to do so may result in referral of this matter to the Office of the Attorney General. See G. L. c. 66, § lOA(b). Sincerely, ~y~ Supervisor of Records cc: Jim Haddadin