Paul MacMillan v. Lawrence, City of - City Attorney's Office (SPR 20243304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2024 SPR24/3304 Timothy P. Houten, Esq. First Assistant City Attorney City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Attorney Houten: I have received the petition of Paul MacMillan 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 October 24, 2024, Mr. MacMillan requested, “the report regarding the POST Investigation authored by [a named individual]…” Prior Appeal This request was the subject of a prior appeal. See SPR24/3021 Determination of the Supervisor of Records (November 19, 2024). In my November 19th determination, I found that the City had not met its burden to withhold the records under Exemptions (a) and (f) of the Public Records Law. The City responded on December 3, 2024. Unsatisfied with the response, Mr. MacMillan petitioned this office and this appeal, SPR24/3304, 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. See 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 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

Timothy P. Houten, Esq. SPR24/3304 Page 2 December 20, 2024 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. The City’s November 6th Response In its November 6, 2024 response, the City provided additional records and cited Exemption (a) of the Public Records Law to withhold additional responsive records. In its response, the City stated, “[t]he SPR Order also asked the City to clarify whether any non- exempt segregable portion of the report could be disclosed… Although the contents of the ‘POST Investigation report authored by [a named individual]’ sought by [Mr. MacMillan’s] request primarily concern ‘Acting/Provisional Chief…’ the report contains four (4) pages, regarding the two officers referenced in [Mr. MacMillan’s] appeal. Since this segregable portion of the report does not concern [a named individual] or the ongoing POST investigation, I have attached copies of the pertinent pages hereto.” Current Appeal In his appeal, Mr. MacMillan stated, “[t]he report was regarding the untruthfulness allegation of Acting Police Chief… of the Lawrence Police Department. The city has only provided me with excerpts and not the entire report. The city has stated to your office that they were under a subpoena not to release this specific document… I am requesting that the City of Lawrence provide the entire document to me as requested.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Timothy P. Houten, Esq. SPR24/3304 Page 3 December 20, 2024 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), in its November 6, 2024 response, the City cites G. L. c. 6E, § 8(a)(2), which provides in pertinent part: The division of police standards may initiate a preliminary inquiry into the conduct of a law enforcement officer upon receipt of a complaint, report or other credible evidence that is deemed sufficient by the commission that the law enforcement officer may have engaged in prohibited conduct. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. G. L. c. 6E, § 8(a)(2). In its December 3rd response, under G. L. c. 6E, § 8(a)(2), the City states, “[t]he report that [Mr. MacMillan] seek[s] is subject to the attached Subpoena, which POST has specifically requested the City not disclose the existence of, the receipt of, and the nature of the evidence provided in this response… the City will not violate any statutory confidentially provisions or interfere with an ongoing POST investigation. Therefore, the City shall withhold this report as its release could compromise the POST investigation efforts.” Based on the information provided in the City’s response, it remains unclear how the withheld record is the type of record contemplated under the statute cited above. The City has not demonstrated that the above referenced statute specifically or by necessary implication permits it to withhold the record in its possession from disclosure. Consequently, I find that the City has not met its burden to withhold the requested record under Exemption (a) of the Pubic Records Law.

Timothy P. Houten, Esq. SPR24/3304 Page 4 December 20, 2024 Conclusion Accordingly, the City is ordered to provide Mr. MacMillan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. MacMillan may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul J. MacMillan Eileen O’Connor, Esq.