John Hilliard v. Everett, City of - Public Schools (SPR 20250046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 21, 2025 SPR25/0046 David O’Connor Records Access Officer Everett Public Schools 121 Vine Street Everett, MA 02149 Dear Mr. O’Connor: I have received the petition of John Hilliard, of the Boston Globe, appealing the response of the Everett Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 17, 2024, Mr. Hilliard requested, “[a]ny draft or final report regarding allegations of misconduct against former Everett Public Schools [identified individual].” The School responded on January 3, 2025. Unsatisfied with the response, Mr. Hilliard petitioned this office and this appeal, SPR25/0046, was opened as a result. While this appeal was pending, the School provided a supplemental response on January 13, 2025. 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. 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 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

David O’Connor SPR25/0046 Page 2 January 21, 2025 custodian must provide the responsive records. The School’s January 3rd response In its January 3, 2025 response, the School stated, “[t]he public records can’t be produced because they are the subjects of disputes in active litigation, administrative hearings or mediation.” Current appeal In his appeal, Mr. Hilliard states, “[o]n Jan. 3, 2025, the Everett Public Schools denied access to the public record. The reason given was ‘[t]he public records can’t be produced because they are the subjects of disputes in active litigation, administrative hearings or mediation’. Everett Public Schools provided no other details.” In correspondence to this office dated January 13, 2025, the School advised, ... [an identified individual] has filed an appeal of his conviction in the matter of Commonwealth of Massachusetts v. Frederick Foresteire in Malden District Court, Docket No. 1950CR402 and in that matter there was an impoundment order issued by Malden District Court specifically relating to the report at issue in the Boston Globe’s request. The School further advised that the “... School will willingly produce the report, subject to appropriate redactions intended to protect the identity of cooperating witnesses and other privacy related matters once the proceeding and appeal filed by [an identified individual] are finally concluded and the impoundment order is released.” Pending 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 January 17, 2025 conversation between the School and an attorney of the Public Records Division, the School confirmed that the pending litigation is ongoing. 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).

David O’Connor SPR25/0046 Page 3 January 21, 2025 Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard