Quemere, Andrew v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 28, 2015 SPRlS/630 Mr. Sean W. Farrell, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Andrew Quemere appealing the response of the Department of State Police (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Quemere requested "any and all manuals, guides, instructions, training materials, and other documentation related to IA Pro software." In your response dated July 20, 2015 you state the only responsive record the Department possesses is a hard copy of an IA Pro upgrade manual. You indicate you will afford Mr. Quemere an opportunity to inspect the responsive record. However, you state the Department will not make copies of the manual because of"proprietary concerns." In his appeal, Mr. Queme re asks this office to order the Department to provide copies of the responsive records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); 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). In addition, G. L. c. 66, § 1O (a) states in relevant part: Every person having custody of any public record, as defined in clause Twenty-sixth of section seven of chapter four, shall, at reasonable times and without umeasonable delay, permit it, or any segregable portion of a record which is an independent public record, to OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Sean W. Farrell, Esq. SPR15/630 Page Two September 28, 2015 be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee. G.L c. 66, § lO(a) (emphasis added) Therefore, the Department is required to permit inspection of the record and provide Mr. Quemere with a copy of the record. The Department must not only cite an exemption, but also specifically explain the applicability of the exemption to the requested records in order to withhold a copy of the record. Whereas the Department did not cite an exemption, nor explain its applicability, I find the Department failed to satisfy its burden to withhold copies of the responsive records. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Quemere with copies of the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Quemere a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this offi eat pre@sec.state.ma.us. cc: Mr. Andrew Quemere