Joseph P. Kittredge v. Lowell, City of - Law Department (SPR 20243464)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 15, 2025 SPR24/3464 Jacqueline Cook Records Access Officer Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Attorney Joseph P. Kittredge appealing the response of the Lowell Police Department (Department) to numerous requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR24/3164 On November 4, 2024, Attorney Kittredge requested: [1] Any and all documents concerning the investigation of the off duty incident between [two identified individuals] at a Longmeadow Golf Course on or about 2012; [2] Any and all past disciplinary actions taken against [an identified individual], including, but not limited to, details of the offense and the resulting punishment; [3] Any and all complaints filed against [an identified individual], including but not limited to, the nature of the complaint, investigation findings and final disposition; [4] Any and all records of awards or recognition received by [an identified individual] for his performance of his duties as a Lowell Police Officer; [5] Any and all records of [an identified individual]’s advancement, including but not limited to, promotions, promotional lists, promotional exams, assignments, transfers within the Lowell Police Department; 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

Jacqueline Cook SPR24/3464 Page 2 January 15, 2025 [6] Any and all records reflecting [an identified individual]’s badge number, years of service, and current assignment. SPR24/3165 On October 31, 2024, Attorney Kittredge requested: Copies of all documents in the possession or control of the Lowell Police Department related to [an identified] Police Officer. . . . These documents include documents, emails, phone records, reports, notes, texts, instant messages; GPS location-data records, audio recordings, transcripts, internal communications, minutes of meetings, resulting discipline, press releases and video recordings, but are not limited to, the following: [1] Any and all documents concerning the investigation of the off duty incident between [two named individuals] at a Brickhouse Pizza on or about 2019[;] [2] Any and all past disciplinary actions taken against [an identified officer], including, but not limited to, details of the offense and the resulting punishment[;] [3] Any and all complaints filed against [an identified] Officer . . ., including but not limited to, the nature of the complaint, investigation findings and final disposition[;] [4] Any and all records of awards or recognition received by [an identified] Officer for his performance of his duties as a Lowell Police Officer[;] [5] Any and all records of [an identified] Lowell Police Officer[’s] advancement, including but not limited to, promotions, promotional lists, promotional exams, assignments, transfers within the Lowell Police Department[;] and [6] Any and all recordings of reflecting [an identified] Officer[’s] badge number, years of service and current assignment. SPR24/3167 On October 31, 2024, Attorney Kittredge requested “all documents in the possession or control of the Lowell Police Department related to [an identified individual] … not limited to, the following”: [1] Any and all documents concerning the investigation of the cell death involving [an identified individual]; [2] Any and all past disciplinary actions taken against [an identified individual], including, but not limited to, details of the offense and the resulting punishment;

Jacqueline Cook SPR24/3464 Page 3 January 15, 2025 [3] Any and all complaints filed against [an identified] Police Officer . . ., including but limited to, the nature of the complaint, investigation findings and final disposition; [4] Any and all records of awards or recognition received by [an identified] Police Officer . . . for his performance of his duties as a Lowell Police Officer; [5] Any and all records of [an identified] Lowell Police Officer[’s] advancement, including but not limited to, promotions, promotional lists, promotional exams, assignments, transfers within the Lowell Police Department; [6] Any and all records reflecting [an identified] Police Officer[’s] badge number, years of service and current assignment. SPR24/3168 On October 31, 2024, Mr. Kittredge requested “…copies of all documents in the possession or control of the Lowell Police Department related to [an identified] Police Officer. ... These documents include documents, emails, phone records, reports, notes, texts, instant messages; GPS location-data records, audio recordings, transcripts, internal communications, minutes of meetings, resulting discipline, press releases and video recordings, but are not limited to, the following”: [1] Any and all documents concerning the investigation of the off duty incident between [two identified individuals] at a Longmeadow Golf Course on or about 2012; [2] Any and all past disciplinary actions taken against [an identified individual], including, but not limited to, details of the offense and the resulting punishment; [3] Any and all complaints filed against [an identified individual], including but not limited to, the nature of the complaint, investigation findings and final disposition; [4] Any and all records of awards or recognition received by [an identified individual] for his performance of his duties as a Lowell Police Officer; [5] Any and all records of [an identified individual]’s advancement, including but not limited to, promotions, promotional lists, promotional exams, assignments, transfers within the Lowell Police Department; [6] Any and all records reflecting [an identified individual]’s badge number, years of service, and current assignment.

Jacqueline Cook SPR24/3464 Page 4 January 15, 2025 SPR24/3169 On November 4, 2024, Attorney Kittredge requested the following: [1] Any and all documents concerning the investigation of the off duty incident between [identified individuals] at Brickhouse Pizza on or about 2019; [2] Any and all past disciplinary actions taken against [an identified individual], including, but not limited to, details of the offense and the resulting punishment; [3] Any and all complaints filed against [an identified individual], including but limited to, the nature of the complaint, investigation findings and final disposition; [4] Any and all records of awards or recognition received by [an identified individual] for his performance of his duties as a Lowell Police Officer; [5] Any and all records of [an identified individual]’s advancement, including but not limited to, promotions, promotional lists, promotional exams, assignments, transfers within the Lowell Police Department; and [6] Any and all records reflecting [an identified individual]’s badge number, years of service and current assignment. Previous Appeals These requests were the subjects of previous appeals. See SPR24/3164 Determination of the Supervisor of Records (December 3, 2024); SPR24/3165 Determination of the Supervisor of Records (December 3, 2024); SPR24/3167 Determination of the Supervisor of Records (December 3, 2024); SPR24/3168 Determination of the Supervisor of Records (December 3, 2024) and SPR24/3169 Determination of the Supervisor of Records (November 26, 2024; December 3, 2024). In my November 26th and December 3rd determinations, I ordered the Department to provide a written response to Attorney Kittredge. Subsequently, the Department responded on December 18, 2024. Unsatisfied with the Department’s response, Attorney Kittredge petitioned this office, and this appeal, SPR24/3464, 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).

Jacqueline Cook SPR24/3464 Page 5 January 15, 2025 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. The City’s December 27th Response In its December 27, 2024 response, the City states that the “requests must be denied pursuant to Exemption (d) of the Public Records Law, M.G.L. c.4, §7(26)(d), as the documents are not subject to disclosure due to ongoing active litigation.” Pending Litigation or Administrative Matter 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 its December 18th response to Attorney Kittredge, an attorney for the City states the following: In your public records requests, you request documents that I believe, in good faith, relate directly to your client’s ongoing appeal before the Civil Service Commission. On multiple occasions you were sent emails asking to clarify if this was the case. The City never received a response. In his appeal petition, Attorney Kittredge states that “the City fails to articulate how matters years before a litigation in 2024 is subject to exemption,” and also contends that “the information sought is not of people that are the subject of a pending matter involving a client of mine.” Based on the City’s response, and the information provided in Attorney Kittredge’s appeal petition, it is unclear whether the responsive records are the subject of pending litigation or a pending administrative proceeding. Specifically, the City has not provided a docket number or any other identifying information referring to the possible administrative proceeding mentioned in its response, nor has the City explained how the responsive records are involved in

Jacqueline Cook SPR24/3464 Page 6 January 15, 2025 the proceeding. See 950 C.M.R. 32.08(2)(b). Further, please note that a change in the status of any pending litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its December 18th response, under Exemption (d), the City argues the following: Exemption (d) provides a limited executive privilege for policy development within an ongoing deliberative process. See M.G.L. c.4, §7(26)(d). Exemption (d) exempts from disclosure those records which relate to the deliberative process of a governmental entity. Id. The exemption applies to recommendations on legal and policy matters. The Superior Court “and the administrative body governing public records have found that records concerning ongoing litigation fall within exemption (d).” Lafferty v. Martha’s Vineyard Comm’n, 2004 WL 792712, at *3 (Mass.Super.Ct. April 9, 2004); see also Kent v. Commonwealth, Civil No. 982693, 2000 WL 1473124, at *4-5 (Mass.Super.Ct. July 27, 2000), citing Letter- Determination of the Supervisor of Public Records, SPR91/039, April 19, 1991, at 3 and Letter-Determination of the Supervisor of Public Records SPR93/186, June

Jacqueline Cook SPR24/3464 Page 7 January 15, 2025 2, 1993, at 7. In Lafferty, the Superior Court also explained “The preparation of and involvement in litigation by an agency ... inherently entails the development of “policy positions’ by that agency. Litigation often concerns ... a policy adopted by the agency. Further, the agency prosecutes a strategy for the litigation, and its ‘policy positions’ are frequently subject to change and refinement throughout litigation. Accordingly, records ... in so far as they concern ... ongoing litigation or administrative proceedings, are exempt from disclosure pursuant to exemption (d).” As such, the documents are exempt from disclosure under Exemption (d) the Public Records Law. The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The proper avenue for this request is through discovery. Based on the City’s response, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa at 448. Further, the City has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa at 448. The City must clarify these matters. Further, it is unclear from the City’s response how the records can be withheld in their entirety. Specifically, it is not clear whether the withheld records contain factual information that can be segregated from the records. The City is advised that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, it is unclear from the City’s response which specific records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold under Exemption (d). See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the City is ordered to provide Attorney Kittredge 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

Jacqueline Cook SPR24/3464 Page 8 January 15, 2025 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Joseph P. Kittredge, Esq. Garrett Beaulieu, Esq.