Andrew Quemere v. Bristol County District Attorney's Office (SPR 20201511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 11, 2020 SPR20/1511 Mary E. Lee, Esq. Assistant District Attorney Office of the District Attorney – Bristol District 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Andrew Quemere appealing the response of the Office of the District Attorney – Bristol District (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, by email on August 14, 2020, Mr. Quemere requested: • Brady lists, which refer to lists of police officers who have credibility problems and other concerns that must be disclosed to the defense if the officer is involved in a criminal prosecution; • All letters, emails and other communications notifying police departments and/or individual police officers that an officer has been added to a Brady list for the years 2015 to the present; and • All policies, procedures and training records related to Brady lists. In addition, Mr. Quemere asks that the records be provided in electronic format, and that fees be waived, as he believes the request is in the public interest. The Office’s August 31, 2020 response and production of records By email on August 31st, the Office provided Mr. Quemere with three documents that are responsive to his request. To accompany the records, the Office provided Mr. Quemere with an August 31st response, citing Exemptions (f), the Criminal Offender Record Information Act, and the second clause of Exemption (c). 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

Mary E. Lee, Esq. SPR20/1511 Page 2 September 11, 2020 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, § 10A(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, § 10(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). Current Appeal In his August 31st email, Mr. Quemere objects to the Office’s lack of specificity in redacting information from the records he received. In addition, Mr. Quemere indicates that two documents were redacted without any reason provided by the Office. Burden of specificity The Office produced redacted records under the exemptions in the Public Records without providing specificity to support withholding content within the records. The requestor indicated that the Office appears to have redacted two documents without citing an exemption with specificity. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); -se-e -al-so- -G-lo-b-e- N-e-w-s-p-ap-e-r Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the redacted content in the records is 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). In camera inspection In order to facilitate a determination as to the applicability of the Office’s exemption claims and redaction of the records provided on August 31, 2020 to Mr. Quemere, the Office must provide this office with an un-redacted copy of these records for an in camera inspection. 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.

Mary E. Lee, Esq. SPR20/1511 Page 3 September 11, 2020 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) (administrative 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. 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 Office may provide this office with a further explanation of its position regarding the redactions and the applicability of the exemption claims. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Conclusion Accordingly, the Office is ordered to provide this office with an un-redacted copy of the records provided to Mr. Quemere on August 31, 2020 for in camera inspection within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere