THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MARTHA COAKLEY
ATTORNEY GENERAL

January 20,2015

(617) 727-2200
www.mass.gov/ago

The Honorable Richard Kos

City of Chicopee City Hall
Market Square
17 Springfield Street
Chicopee, Massachusetts 01013

Re: Investigation into Allegations of Missing Public Records of Chicopee

Dear Mayor Kos:
Chicopee City Solicitor Marshall Moriarty contacted the Attorney General's Office (the
"AGO") in January 2014 and expressed concern that former Mayor Michael Bissonnette potentially
destroyed public records in violation of Massachusetts law. The AGO conducted a lengthy
investigation with cooperation from the City of Chicopee. This office has determined that it will not
seek criminal charges because there is insufficient evidence beyond a reasonable doubt that Mayor
Bissonnette intentionally removed, attempted to destroy, or actually destroyed a public record, as that
term is defined by Massachusetts law.
AGO investigators interviewed 19 individuals, including members of your administration,
Mayor Bissonnette and members of his administration, and past and present employees of the City's
Clerk's Office, Law Department, Information Technology ("IT") Department, and City Hall
Maintenance Department. Investigators reviewed hundreds of documents located at City Hall and
Mayor Bissonnette's private law office. With the assistance of the AGO Digital Evidence
Laboratory, investigators reviewed the relevant emails of the Mayor, electronic files restored from
the City's backup server, and the files previously maintained on the Mayor's desktop.
Investigators were unable to identify any specific public record that Mayor Bissonnette or his
staff illegally destroyed. Moreover, there are significant deficiencies in the City's record retention
practices, most notably a lack of record retention training, the absence of a transition strategy for a
change in administration, and an inadequate electronic data backup infrastructure.
It is a crime in Massachusetts to unlawfully remove or destroy a public record. Section 14
requires an outgoing public official, "upon expiration of his term of office, employment or authority,
to deliver over to his successor all such records which he is not authorized by law to retain." To
enforce that obligation, Section 15 permits the fine or imprisonment of whoever "unlawfully keeps in
his possession any public record or removes it from the room where it is usually kept, or alters,
defaces, mutilates or destroys any public record."
There are three limitations to Section 15's scope. First, it applies only to "public records,"
defined as "documentary material or data, regardless of physical form or characteristics" that are

"made or received" by a public official. There are numerous exemptions to this definition. See G.L.
c. 4, 7, cl. 26. Thus, not all records made or received by public officials constitute public records.
Second, Section 15 does not apply to the authorized destruction of public records, nor does it
generally apply to copies, drafts and notes. Public records may be destroyed if done consistent with
those schedules and, for certain records, with the prior approval of the Supervisor of Records.
Third, Section 15 is intended to punish an individual who unlawfully removes, alters or
destroys a public record. It is unlikely that the Legislature meant to impose criminal liability for the
accidental removal, alteration or destruction of a public record.1 Thus, a fair reading of Section 15
requires proof that a defendant intended to remove, alter, or destroy the public record.
1.

Mayor Bissonnette removed public records from City Hall and compromised the
City's efforts to preserve electronic records

Mayor Bissonnette's handling of Chicopee's records was less than exemplary. In addition
to the records that he delivered to the Law Department, investigators found copies of public records
in recycling bins at City Hall. The only original public records retrieved from the bins were several
constituent letters.2
Mayor Bissonnette also had City maintenance employees deliver several boxes to his private
law office. Although those boxes were largely filled with material related to his law practice,
investigators discovered some public records, including constituent letters, interspersed throughout
the boxes. When asked about those records. Mayor Bissonnette stated that he must have accidently
thrown those records into the boxes as he quickly cleaned out his office.
His treatment of the City's electronic records raises further concerns. At your specific
request, the IT Department in December sent an email to City personnel - including Mayor
Bissonnette - instructing those leaving office to save any electronic files to their department's shared
drive.
The IT Department discovered on January 6 that all of the electronic files saved to the
Mayor's shared drive were deleted. City records revealed that Mayor Bissonnette logged onto the
system on Sunday, January 5, and was the only person with access to the relevant portion of the
shared drive that entered City Hall that weekend.
Mayor Bissonnette admitted to investigators that he deleted the contents of the shared drive.
He claimed that his sole motivation was to leave the Mayor's office in a more orderly condition than
it was left to him by the prior administration. He claimed that he did not understand that he was

1 The statute did not contain the term "unlawfully" when first enacted, but rather "guilty," a term that implied intent.
To the extent it provides guidance, the federal counterpart to Section 15 requires that the individual acted
"willfully," i.e. with the intent to destroy the public record. See 18 U.S.C 2071.
2 One of the recycling bins was half-filled with shredded paper. The only shredder in the Mayor's Office was
located in the suite area. No staff member observed Mayor Bissonnette using the shredder before the maintenance
department retrieved the bins. It should be noted that staff of other departments also had access to these recycling
bins.

affecting records stored in a location other than his computer. Fortunately, the IT Department
promptly discovered what had happened, and was able to recover the deleted files.
2.

No specific public record was identified as destroved

At the conclusion of his term, Mayor Bissonnette and his staff transferred some records from
his office to the Law Department. The Mayor's staff left other open project files at their
workstations, frequently with instructions for the next steps. Present staff members largely
corroborated that information and also located other necessary records in the Clerk's Office or the
department involved with the project.
Importantly, the City implemented an email server in 2010 that records every message sent or
received by City personnel, and maintains the capacity to save the emails for seven years.3 Neither
Mayor Bissonnette nor any member of his staff had access to that server. Thus, any email sent or
received by Mayor Bissonnette from a Chicopee email account since 2010 is preserved. Although
Mayor Bissonnette admitted to deleting electronic documents saved to the Mayor's Office shared
drive during the weekend of January 4 (as discussed below), the IT Department restored the contents
of the shared drive from the back-up server.
3.

Determination not to pursue criminal charges

Mayor Bissonnette stated, both to the public and to law enforcement, that he made an effort
to prepare the office for a smooth transition by cleaning his office and computer. He stated that he
believed that all of the City's electronic data was preserved on both onsite and offsite servers, and
that he did not understand that he was deleting documents beyond those stored on his desktop
computer when he deleted the shared drive. Further, to the extent he possessed public records in his
office that he did not transfer to the Law Department, Mayor Bissonnette stated that he believed the
"official" copies were maintained by other departments (a statement that we have corroborated to a
large extent) and did not realize that public records were amongst the documents that he hurriedly
boxed up and removed. Not only did he fail to save the files on his computer to the shared drive as
instructed by the IT Department, he took the affirmative step to delete the contents of the shared
drive, effectively hindering the efforts of his own staff to comply with state law.4
Mayor Bissonnette's actions were inappropriate. Current law provides no civil remedy for
this office to pursue, under these circumstances. Thus, in the absence of an identified public record

Mayor Bissonnette approved the purchase of the email server while in office.
According to a staff member, Mayor Bissonnette declared in December that "nothing in this office is a public
record" and directed his staff to pack everything and take it with them. That same staff member stated that Mayor
Bissonnette expressed frustration during the final week in office that the cabinets still contained working files.
Although allegedly made in front of others, no other staff member recalled those statements.
4