John Hilliard v. Everett, City of - Solicitor's Office (SPR 20250096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 27, 2025 SPR25/0096 Erin Deveney Department Records Access Officer Mayor’s Office Department City of Everett 484 Broadway Everett, MA 02149 Dear Ms. Deveney: I have received the petition of John Hilliard, of the Boston Globe, appealing the response of the City of Everett (City) 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: [1] A spreadsheet listing all complaints received by the city of Everett from Jan. 1 2018 to the present regarding discrimination, harassment, hostile environment, or retaliation on the basis of race, national origin, and/or sex by an elected or appointed official, or employee, including sexual harassment. For each complaint, please provide the following: A. The date and location of each alleged incident B. A brief description of each alleged incident C. A description of the city of Everett’s response to each alleged incident, including whether or not any disciplinary action was taken and especially what discipline was imposed [2] A copy of all policies, guidelines, and procedures that apply to City of Everett elected or appointed officials, or employees regarding discrimination, harassment, hostile environment, and retaliation on the basis of race, national origin, and/or sex, including the date of adoption and the most recent revision, if any, to each document. Please include a description of Everett’s process for investigating and resolving complaints of discrimination, harassment, hostile environment, or retaliation. [3] A spreadsheet listing all of Everett’s elected and appointed officials, and city employees, that indicates any familial relationship to [an identified individual][.] 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

Erin Deveney SPR25/0096 Page 2 January 27, 2025 The City responded on January 8, 2025. Unsatisfied with the response, Mr. Hilliard petitioned this office and this appeal, SPR25/0096, 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 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 January 8th response In its January 8, 2025 response, the City provides a copy of a record responsive to Item 2 of the request, and states that it has “no responsive documents” for Items 1 or 3 of the request. Current appeal In his appeal petition, Mr. Hilliard states, “[the City] reported that there were ‘no responsive documents’ regarding Items 1 and 3. It provided a copy of an ‘Equal Employment Opportunity Prevention of Discrimination, Harassment, and Retaliation In the Workplace’ in response to Item 2.” Mr. Hilliard goes on to argue the following: Everett’s response to Item 1 -- that there are no responsive documents -- does not appear to be plausible. That item sought information about all complaints received by the city of Everett from Jan. 1 2018 to the present regarding discrimination, harassment, hostile environment, or retaliation on the basis of race, national origin, and/or sex by an elected or appointed official, or employee, including sexual harassment. The city’s former superintendent of schools and assistant superintendent of schools has an active federal civil rights case against the city and several leaders,

Erin Deveney SPR25/0096 Page 3 January 27, 2025 they allege they faced sexist and racist harassment and retaliation while working in Everett; the former superintendent also filed a Massachusetts Commission Against Discrimination complaint. Upon review of Mr. Hilliard’s appeal petition, it appears that he objects only to the City’ response to Item 1 of the request. Records in Existence; No Duty to Conduct Research, Create Documents Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the City’s response, and the information provided in Mr. Hilliard’s appeal petition, it is unclear whether the City possesses additional records responsive to Item 1 of Mr. Hilliard’s request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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 Mr. Hilliard 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. Hilliard may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard