Andrew Quemere v. Northampton, City of - City Clerk (SPR 20190933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2019 SPR19/933 Pamela Powers City Clerk City of Northampton 210 Main Street, Room 4 Northampton, MA O1 060-3148 Dear Ms. Powers: I have received the petition of Andrew Quemere appealing the response of the City of Northampton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Quemere requested: "all current policies, memos/bulletins, and other informational materials (e.g., PowerPoint presentations, instructional videos, etc.) related to the drugs [F]entanyl and [C]arfentanil for police and other emergency personnel." Mr. Quemere requested that the records be provided in electronic format, and that all fees waived for his request. In a May 10, 2019 email from Kelly Banister Schuetze, the City's Director of Communications, Ms. Schuetze states, "[w]e have no dispatch specific protocols, policies or training for dealing with calls related to the drugs Fentanyl and Carfentanil. We are certified in and use Priority Dispatch Emergency Medical Dispatch systems for all medical calls. We are not allowed to share the information as it is proprietary. Here is the company's website if [Mr. Quemere] wish[es] to contact them: https://prioritydispatch.net/." As a result of the City's response, Mr. Quemere petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Quemere asserts, "[t]he [C]ity does not cite any exemptions to the public records law that allow it to withhold proprietary information. Please order the [C]ity to provide a new response that complies with the law." No duty to create records The City informed Ms. Quemere that it has no dispatch specific protocols, policies or training for dealing with calls related to the drugs, Fentanyl and Carfentanil. Under the Public Records Law, the Records Access Officer (RAO) is not required to create any record(s) in response to a public records request. The duty to comply with requests for information extends 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

Pamela Powers SPR19/933 Page2 May 23, 2019 only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977). However, the RAO shall identify any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). 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, § lOA(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 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, § 1O (b )(iv) (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 ... "); 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). Burden of specificity; duty to segregate The City denied Mr. Quemere's request without claiming any exemption(s) in the Public Records Law that would support withholding of any responsive records in the City's possession. The City merely stated that the information is "proprietary," and the City is not allowed to share the information. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The City did not meet its burden of demonstrating how any responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10( a). The City did not identify the records, categories of records or portions of records in its possession that it has withheld from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the City must identify what records it has in its possession that the City withheld. Conclusion Accordingly, the City is ordered to provide Mr. Quemere with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10

Pamela Powers SPR19/933 Page 3 May 23, 2019 business days. 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 office at pre@sec.state.ma.us. Sincerely, ~a~ Supervisor of Records cc: Andrew Quemere