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Massachusetts denies appeal after Lowell refuses to release records; cites discretion allowed in cases involving litigation

By Colman Herman, contributing writer, Commonwealth magazine

In 2006, Massachusetts Secretary of State William Galvin amended his public records regulations to give him discretion on whether to open an appeal concerning a request for public records.  He may decline to open an appeal where the public records in question are the subject of a dispute in active litigation, administrative hearings or mediation; if he believes the request is intended to harass or intimidate someone or assist in the commission of a crime; or if he thinks the public records request is made solely for a commercial purpose.

I have reviewed a number of appeals where Galvin’s supervisor of public records has refused to open an appeal because the public records in question are the subject of some legal process.  Many lawyers say that makes no sense.  Here’s a case in point that is instructive.

On October 21, 2010, Boston attorney David Milton sent a letter to the City of Lowell demanding $60,000 to settle a wrongful act claim on behalf of his client, Cindy Thach.  The letter contains allegations against Officer Stephen Ciavola and State Trooper Erik Gagnon regarding an incident that took place in 2009.

Growing frustrated with Ms. Thach’s inability to provide information, Detective Ciavola picked up a trash can and threw it across the room.  Shocked, Ms. Thach asked, “What’s your problem?” and stood up.  Detective Ciavola shoved her back into her chair.  Both officers held her down forcefully, tipping the chair back as if to make her fall. . . .

While Ms. Thach was restrained in the chair, Detective Ciavola struck her in the mouth, drawing blood.  The officers then carelessly let go of the chair, causing Ms. Thach to fall on the floor.  As Ms. Thach attempted to get up from the chair, she twisted her ankle.

Milton’s letter also states that the City of Lowell “negligently hired [Ciavola] and allowed him to continue as a police officer” although he “pled guilty to an assault and battery charge in 1994″ and has been “the subject of multiple lawsuits for excessive force and was suspended for a year for a drunken brawl with another officer.”

Four days later, Milton made a public records request of the Lowell Police Department (LPD) for copies of documents related to an internal affairs investigation of Ciavola, as well as documents pertaining to allegations of other misconduct against the officer.

The City of Lowell denied Milton’s request.  “It is clear to the City that your October 25, 2010 LPD letter concerning its records is not a public records request but rather a request for discovery . . . ,” Assistant City Solicitor Brain Leahey wrote to Milton.  “Further, it is the position of the City that the October 25, 2010 LPD letter was designed to harass and/or intimidate the City into settling the allegations contained in the October 21, 2010 City letter for a specific price, rendering the public request to be solely commercial in nature.”

Milton filed an appeal with Galvin, arguing that the requester’s reasons for seeking the records are irrelevant.  “Except for a limited exception that proves the rule, the records custodian may not inquire into these reasons or deny a request because of the requester’s purpose,” he wrote.  “If any person with an idle curiosity in the long history of misconduct by Officer Ciavola could obtain these records, then so can I.”

Galvin’s supervisor of public records, Shawn Williams, initially ruled in Milton’s favor.  “The Public Records Law does not distinguish between requesters,” he wrote to Leahey, the City of Lowell attorney.  “While the underlying issues associated with a public records request may escalate into litigation, the right of requesters to inspect and obtain copies of public records is a clear statutory mandate.  The discovery process and the Public Records Law are distinct and independent venues for gaining access to recourse.”  And so Williams ordered the City of Lowell to turn over the records to Milton.

But a month later Williams had a change of heart.

“In reviewing your [appeal], it has come to the attention of this office that on October 21, 2010 you sent a letter to the City that appears to have been made in preparation for litigation involving one of your clients,” he wrote to Milton.  “Whereas the responsive records are related to a matter where litigation is imminent, I have exercised the discretion of this office to decline to pursue your administrative appeal any further.”

Milton fired back. “Your resolution of [my] public records appeal does more than confirm that the Public Records Law has no teeth.  It removes the gums,” he wrote to Williams.  “That this injury to the law comes from the agency charged with upholding it makes it all the more shameful. . . . Under your interpretation, only disinterested persons can obtain public records, not anyone who needs them.”

Milton’s boss, noted civil rights attorney Howard Friedman, was likewise appalled at Williams’ ruling.  “One purpose of the public records statute is to provide information which can prevent a lawsuit or support it,” Friedman tells me.  He says that since lawyers need a factual basis to bring suit, it makes no sense to prevent access to records because a suit might be brought.  “It is equally illogical to require documents to be produced to someone who has no stake in the issue, while a person contemplating suit is barred from the same documents,” Friedman observes.

Galvin and Williams declined repeated requests for an interview.  The legal case is still pending.


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