Andrew Quemere v. Methuen, City of - Police Department (SPR 20190939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2019 SPR19/0939 Capt. Gregory Gallant Records Access Officer City of Methuen - Police Department 41 Pleasant Street Methuen, MA O1 844 Dear Capt. Gallant: I have received the petition of Andrew Quemere appealing the response of the Methuen Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Quemere requested "[a]ll incident reports, photographs, and videos associated with the May 8, 2019 fentanyl-exposure incident at the Methuen Police Station." The Department denied his request claiming the responsive records are exempt from disclosure pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). 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, § 1 OA( 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 1s the burden of the records custodian to demonstrate the apphcat10n of an exempt10n m order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 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). 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Capt. Gregory Gallant SPR19/0939 Page 2 May 24, 2019 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its initial response, the Department claims that Exemption (a) applies to "the incident/court reports and any body camera video relating to that incident," and states that "the photographs and news reel videos, those were taken by the associated news agencies and are readily available through those agencies, as posted on their websites." The Department later indicates that the "incident reports/pictures/videos relating to the incident ... are now held under the direction and discretion of the Essex County District Attorney's office," and states that "[a]ny pictures, videos, reports entered into evidence would fall under Exemption A." The Department indicates that responsive records "released prior to the initiation of criminal proceedings are readily available." The Department additionally asserts that "the incident in question is currently under the auspices of the Essex County District Attorneys' office for prosecution, and therefore any pictures, videos, reports entered into evidence would fall under Exemption A." Specificity; duty to comply Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Capt. Gregory Gallant SPR19/0939 Page 3 May 24, 2019 The Department's responses did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemption (a) without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Department is advised that when claiming Exemption (a), a records custodian must claim a statute that either specifically or by necessary implication exempts the requested records from disclosure as required by the Public Records Law. See G. L. c. 4, § 7(26)(a). As aresult, I find that the Department has not satisfied its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Further, based on the Department's responses, specifically its assertions related to "news agencies" and the Essex County District Attorney's Office, it is uncertain what responsive records the Department has in its possession or had in its possession at the time of the request. 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 ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). The Department must clarify this matter. See G. L. c. 66, § IO(b)(ii) (the custodian's written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Order Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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, ~ u r r ~ Supervisor of Records cc: Andrew Quemere