Timothy J. Coco v. Lawrence, City of - Office of the City Clerk (SPR 20241454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 28, 2024 SPR24/1454 Eileen O’Connor Bernal City Clerk City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Ms. O’Connor Bernal: I have received the petition of Timothy Coco, on behalf of Jacob Posner, both of Public Media of New England, Inc., appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2024, Mr. Posner requested the following: [1.] Employment records related to [an identified individual;] [2.] Any records relating to [an identified individual’s] appointment consideration, including emails, correspondence, application and cover letter, resume, hiring offer and related[;] [3.] Internal Affairs investigation, background report or other investigatory documents relating to [an identified individual;] [4.] The hiring and/or termination date of [an identified individual]. Previous Appeal This request was the subject of a previous appeal. See SPR24/1414 Determination of the Supervisor of Records (May 9, 2024). In my May 9th determination, I closed SPR24/1414 in light of the City providing Mr. Coco with a written response on May 9, 2024. Unsatisfied with the City’s response, Mr. Coco further appealed, and this case was opened as result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Eileen O’Connor Bernal SPR24/1454 Page 2 May 28, 2024 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. 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. 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. Pending Litigation In its May 9, 2024 response, the City states that the “City of Lawrence has no record of [the individual] ever becoming a city employee or being terminated as an employee, so there are no hiring or termination dates to provide.” The City also states that “[t]he rest of the materials that this petitioner is requesting directly relate to an open case conducted by Peace Officers Standards and Training, POST, and protected from release as materials pertaining to on-going investigations or prosecutions in accordance with ... G.L. c. 4, § 7(26)(f).” Further, copies of court filings included with Mr. Coco’s appeal petition indicate that the requested records are also the subjects of 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. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the employment status of the individual identified in the request, is still active and ongoing in the Essex Superior Court. See Scott Wood v. City of Lawrence, et al. (Essex Superior Court Docket No. 2477-CV-00426). 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). 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).

Eileen O’Connor Bernal SPR24/1454 Page 3 May 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Timothy Coco