Andrew Quemere v. Chelsea, City of - Police Department (SPR 20190947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 24, 2019 SPR19/947 Edwin Hernandez, Sr. Patrol Officer City of Chelsea Police Department 19 Park Street Chelsea, MA 02150 Dear Officer Hernandez: I have received the petition of Andrew Quemere appealing the response of the City of Chelsea - Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; 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 response, the Department denied Mr. Quemere's request in its entirety. As a result of the Department's response, Mr. Quemere petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Quemere asserts, "'[i]n response, the [D]epartment states that it 'does maintain requested records' but fails to identify any such records as required by the public records law. The [D]epartment denies my request, citing [E]xemption B. However, the [D]epartment's response quotes [E]xemption N instead of B ... "' Tlte 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 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

Officer Edwin Hernandez, Sr. SPR19/947 Page2 May 24, 2019 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). The Department's response - burden of specificity; duty to segregate The Department's response stated the language of Exemption (n); yet, also states that it is withholding records under Exemption (b). Based on the Department's response, it is unclear whether the Department denied Mr. Quemere's request under Exemption (b) or Exemption (n) in the Public Records Law. 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 Department 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 Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). The Department 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 Department must identify what records it has in its possession that the Department withheld. Conclusion Accordingly, the Department 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 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. incere y, ~ Rebecca S. Murray Supervisor of Records cc: Andrew Quemere