John Hilliard v. Haverhill, City of - Police Department (SPR 20231501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2023 SPR23/1501 Robert Pistone, Jr. Chief of Police Haverhill Police Department 40 Bailey Boulevard Haverhill, MA 01830 Dear Chief Pistone: I have received the petition of John Hilliard, of the Boston Globe, appealing the response of the Haverhill Police Department (Department) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On June 18, 2023, Mr. Hilliard requested the following records: [1.] Materials related to any background checks of [named person] from 2010 to the present[;] [2.] Any contract between [named person] and the city of Haverhill[;] [3.] Any contract between [named person] and the Haverhill Police Department[.] The Department responded on June 21, 2023, June 29, 2023 and July 7, 2023. Unsatisfied with the responses, Mr. Hilliard petitioned this office and this appeal, SPR23/1501, 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. Att’y 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

Chief Robert Pistone, Jr. SPR23/1501 Page 2 July 14, 2023 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. 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 Department’s June 21st, June 29th and July 7th Responses In its June 21st response, the Department stated, “[t]he [Department] is aware of the lawsuit, but has not yet been served with it. The [Department] strongly disputes many of the allegations in Mr. Wood’s complaint and, upon being served, intends to file a detailed response in court.” In the Department’s June 29th response, the Department stated, “Attorney Cox responded directly to requestor 6/21/2023 on behalf of Haverhill Police Department.” In its July 7, 2023 response, the Department advised, “[t]he [Department] has records responsive to the first two items of your request. There are no records responsive to the third item of your request.” The Department referenced the pending lawsuit, “Scott Wood v. City of Haverhill, et al., Essex Superior Court C.A. No. 2377CV00477. It is our understanding that copies of the 2013 background investigation report have been obtained by various members of the media from sources other than the City.” The City further asserted, “... given the pendency of this litigation, which is premised upon the Department’s maintenance and arguable disclosure of the 2013 background investigation report, the City feels constrained to continue to withhold the 2013 report (as well as other related and/or subsequent investigative reports and materials, and any requested contracts that you are currently seeking) in response to public records requests at this time, under the following exemptions to the Public Records Law.” The Department cited Exemptions (c) and (d) of the Public Records Law to withhold the requested records in their entirety. Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In a conversation between a Department representative and an attorney of the Public Records Division, the Department confirmed that the matter is currently pending before the Essex Superior Court. See Scott Wood v. City of Haverhill, et al., Essex Superior Court C.A. No. 2377CV00477 and that the requested records are related to the proceedings.

Chief Robert Pistone, Jr. SPR23/1501 Page 3 July 14, 2023 In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I also decline to opine on the applicability of Exemptions (c) and (d) of the Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard