Andrew Quemere v. Danvers, Town of - Police Department (SPR 20191018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/1018 Capt. Philip Tansey Danvers Police Department 120 Ash Street Danvers, MA O1 923 Dear Captain Tansey: I have received the petition of Mr. Andrew Quemere appealing the response of the Danvers 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, on May 2, 2019 Mr. Quemere requested "all current policies, memos/bulletins, and other informational materials (e.g., PowerPoint presentations, instructional videos, etc.) related to the drugs fentanyl and carfentanil." On May 6, 2019, the Department responded, providing some responsive records, and declining to provide materials produced by "the Commonwealth Fusion Center, the Drug Enforcement Agency (DEA), New England High Intensity Drug Trafficking Area (HIDTA), HIDTA West Virginia Bulletin, the Massachusetts Municipal Training Council (MPTC), the Tewksbury Police Department and the New Hampshire Information and Analysis Center." The Department stated that the records not provided "were not created by the Danvers Police Department" and may potentially be exempt under Exemptions (a), (b), or (d). Unsatisfied with this response, Mr. Quemere appealed to this office and SPRl 9/1018 was opened as a result. 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, § IOA(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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Captain Phillip Tansey SPR19/1019 Page 2 June 4, 2019 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. Existence ofr esponsive records 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). In addition, G. L. c. 66, § 6A(d) provides in pertinent part "[i]f the public record requested is available on a public website pursuant to subsection (b) of section 19 of this chapter, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website." The Department's May 2'fh Supplemental Response On May 27, 2019, the Department provided a supplemental response, explaining that the "documents withheld were documents that were not created by the Danvers Police Department." Further, they clarify that "these documents would be available in the public realm to any requestor." In subsequent conversations with Captain Tansey, I have learned that the Department does not have any policies specifically mentioning fentanyl or carfentanyl, and they do not create their own training materials on the subject. The Department does possess bulletins from other public agencies that they disseminate; however, the Department claims not to be the proper custodian of the requested records. Based on the foregoing, it is unclear whether the Department is in the possession, custody, or control of responsive records. The Department must clarify this matter. In camera inspection In the alternative, in order to facilitate my review, the Department may provide this office with an un-redacted copy of responsive records for in camera inspection. See 950 C.M.R.32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate). After I complete my review of the documents, I will

Captain Phillip Tansey SPR19/1019 Page 3 June 4, 2019 return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (a dministrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department may provide this office with an explanation of its position regarding its custodial relationship to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ·~~ Rebecca S. Murray Supervisor of Records cc: Mr. Andrew Quemere