Joshua Dankoff v. Haverhill, City of - Police Department (SPR 20201133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2020 SPR20/1133 Lieutenant Doreen M. Champagne City of Haverhill Police Department 40 Bailey Blvd. Haverhill, MA 01830 Dear Lieutenant Champagne: I have received the petition of Joshua Dankoff, Director of Strategic Initiatives at Citizens for Juvenile Justice (CfJJ) appealing the response of the City of Haverhill Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Leon Smith, Esq. of the Executive Director for CfJJ, requested the following records: 1. Data sharing and cooperation agreements or memorandums of understanding with federal immigration authorities; 2. Data sharing and cooperation agreements or memorandums of understanding with regional intelligence (such as the Boston Regional Intelligence Center (“BRIC”) or the Massachusetts Commonwealth Fusion Center); 3. Data sharing and cooperation agreements or memorandums of understanding with school districts or individual schools in your jurisdiction; 4. Gathering and storing of gang information, including: a. Policies for identifying and labeling gang members or individuals suspected of gang affiliation; b. Policies for maintaining and verifying information contained in any “gang Database;” c. Policies for individuals to appeal listing on such a database; d. Policies related to the sharing of database information with other local or federal Authorities; 5. Stop and frisk policies, and field interrogation policies; 6. School policing policies and, to the extent available on the municipal level: a. School discipline policies; b. School policies regarding information sharing with law enforcement; and c. School policies related to undocumented children or children of undocumented parents. 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

Lieutenant Doreen M. Champagne SPR20/1133 Page 2 July 23, 2020 7. All documents closely related to but not specified above, and 8. Where no such document or policy in the above category exists, please provide a written statement to that effect. Data regarding the following: 1. For the time period September 1, 2014 to the date of this request, all Haverhill Public School (“HPS”) documents received from and/or generated by HPS and sent to, transmitted to, or otherwise made available or accessible to BRIC and/or the Massachusetts Commonwealth Fusion Center; 2. For the time period September 1, 2014 to the date of this request, all HPS documents received and/or generated by HPS that Haverhill Police Department (“HPD”) sent to, transmitted to, or otherwise made available or accessible to BRIC and/or the Massachusetts Commonwealth Fusion Center and/or Immigration and Customs Enforcement (“ICE”) and/or any of their employees or agents; 3. For the time period September 1, 2014 to the date of this request, all HPS documents generated by HPD that HPD sent to, transmitted to, or otherwise made available or accessible to BRIC and/or the Massachusetts Commonwealth Fusion Center and/or ICE and/or any of their employees or agents. 4. Data from 2015 through when the search is conducted concerning the number of incidents when a student’s behavior at school led to the student’s being reported to BRIC and/or the Massachusetts Commonwealth Fusion Center and/or federal immigration authorities including, but not limited to ICE; 5. Copies (redacted as necessary to protect student identity) of all school related matters and documents sent to, transmitted to, or otherwise made available or accessible to HPD, BRIC, and/or the Massachusetts Commonwealth Fusion Center and/or with federal immigration authorities including but not limited to ICE; 6. Stop and frisk and field interrogation data for all stop and frisk/field interrogation incidents from 2015 through when the search is conducted in 2020 is requested. To the extent possible, we are requesting raw data with personal identifying information and addresses redacted to protect privacy. However, we request that any redactions of Personally identifiable information do not extend any further than necessary, and in particular, that demographic information such as gender, race, national origin, citizenship, language status, gender, and age (to the extent noted on documents) not be redacted. We also request location, time of incident, and outcome of field interrogation be included in the release. Even where not specifically indicated, this request includes documents that are in electronic format, such as emails. 7. Data regarding how many people have been identified by your [D]epartment as gang affiliated, or gang involved. We request that any redactions of personally identifiable information do not extend any further than necessary, and in particular, that demographic information such as gender, race, national origin, citizenship, language status, gender and age (to the extent noted on documents) not be redacted.

Lieutenant Doreen M. Champagne SPR20/1133 Page 3 July 23, 2020 This request also includes documents in electronic format, meeting minutes, and other circulations that may contain these and related policies. Waiver of fees In its March 9, 2020 request, the CfJJ asked that the Department waive fees associated with this request, due to CfJJ being a non-profit organization, and the documents will contribute to the public’s understanding of the intersection of immigration policy and the juvenile justice system. In the Department’s April 3, 2020 initial response, the Department agrees to a waiver of fees for this request. The Department provided records responsive to the request; however, Mr. Dankoff indicates in his July 8, 2020 petition to the Supervisor of Records (Supervisor), that he did not receive all the records he requested. It is Mr. Dankoff’s belief that the Department does have relevant records that are responsive to the public records request. Mr. Dankoff asserts, “[t]he [Records Access Officer] must provide any records that exist that respond to a question. The City of Haverhill neglects this requirement by merely stating that a search of emails yielded no relevant information that would have addressed CfJJ’s request, without offering any information or guidance.” Mr. Dankoff also asks the Department to confirm whether it participates or otherwise cooperates with either the BRIC or Commonwealth Fusion Center. In his petition, Mr. Dankoff asks this office to confirm with the Department that it has no records responsive to his questions, and/or no further records responsive to his requests. 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 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, § 10(b)(iv) (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…”); 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). April 3, 2020 and April 9, 2020 responses of the Department In an initial April 3, 2020 response, you informed Attorney Smith that the Department identified multiple records responsive to the request received by the Department on March 25,

Lieutenant Doreen M. Champagne SPR20/1133 Page 4 July 23, 2020 2020, and that the Department was continuing to go through the data. Per the request, the Department informed CfJJ that it waived any fees for this request. The Department indicated that it was also working with the City of Haverhill School system (School) to fulfill a separate, but related, request that CfJJ sent to the School in March. The Department also advised CfJJ that due to the Covid-19 pandemic, the Records Division has only one clerk working per day, and many of the Department’s resources are being utilized to their fullest. You indicated to CfJJ that due to the low staffing the Department will need an extension beyond the ten days, but not to exceed 25 days from the date of the request, to furnish records. On April 9, 2020, in an email from Ron Tuell of the Department to Lieutenant Champagne, Mr. Tuell stated, “[e]mail records were search[ed] from January 1, 2017-March 9, 2020 for any records in regards to the [p]ublic [i]nformation request[ed] from [CfJJ]. The records search did not result in any information pertaining to the public records request. I note that no further response was provided to this office in response to the request or to the current appeal by either Mr. Dankoff or the Department. Basis of the appeal In his July 8th petition, Mr. Dankoff asserts that the RAO must provide any records that exist that respond to a question. He also asserts that the City neglected its requirement by stating that a search of emails did not yield relevant information, without offering any information or guidance. Mr. Dankoff is advised, under the Public Records Law, the records custodian or RAO is not required to create records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). ----- Outstanding requests CfJJ identifies several portions of the request to which it contends it did not receive a sufficient response. Namely, it is unclear whether the Department possesses records responsive to: the Department’s participation or cooperation with either the BRIC or Commonwealth Fusion Center; gang related information; or stop and frisk field interrogation data. The Department must clarify whether it possesses records responsive to these portions of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii) (duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request).

Lieutenant Doreen M. Champagne SPR20/1133 Page 5 July 23, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Dankoff with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Joshua Dankoff